[1]the claim has been lodged outwith the period of three months starting with the effective date of termination;[2]it was not reasonably practicable for the claimant to lodge the claim in time; and the claim was lodged within a reasonable period thereafter, in terms of section 111(2)(b) of the Employment Rights Act 1996;[3]the claim is lodged within a period which the Tribunal finds is just and equitable in terms of section 123(1)(b) of the Equality Act 2010;[4]this case will now be listed for a case management preliminary hearing to take place by telephone on a date to be advised.
REASONS
[1]This CVP preliminary hearing commenced on 11 January 2021, but had to be adjourned due to an initial failure of the claimant to lodge the relevant medical evidence to support oral evidence which he had commenced at the hearing. Unfortunately, when the hearing resumed on 2 February, the respondent had not received legible copies of the medical records, so the hearing had to be adjourned again.[2]At this continued hearing on 3 March, I heard further evidence from the claimant on oath, and then he was cross examined by Mr Johnstone. I decided to reserve my judgment due partly to connection issues. I wish to thank parties for their patience while technical issues were addressed.[3]Although the claimant had withdrawn the ordinary unfair dismissal claim (as the claimant does not have two years’ service), at the case management preliminary hearing which took place on 27 October 2020, it was confirmed that the claimant also pursues claims of arrears of pay and automatic unfair dismissal under section 100 and section 103A of the ERA. This is in addition to the claim of disability discrimination.[4]At this hearing, consideration was given to the question of time bar only.[5]Mr Johnstone had produced a set of numbered medical reports which the claimant had lodged. The claimant had lodged further documents of which Mr Johnstone had copies, which unfortunately were not numbered. I agreed with Mr Johnstone however that the only relevant pages were what he described as a witness statement from the claimant, and a letter dated 24 February 2021 prepared for the claimant on his behalf by the CAB, making submissions on the time bar point. Findings in fact[6]Having heard evidence and considered the documents lodged, the Tribunal makes the following relevant findings in fact.[7]The claimant commenced employment with the respondent around July 2018. He is a qualified master technician and he was employed as a mechanic. He was the only mechanic looking after a fleet of around 40 vehicles.[8]The claimant suffers from ADHD, autism and has a history of anxiety and depression. He also suffers from PTSD following service in the armed forces in Afghanistan.[9]Following an incident which took place on Monday 16 December, the claimant was called into a meeting with the respondent, following which he was dismissed effective Wednesday 18 December 2019.[10]Thereafter, emails were exchanged between the claimant and the respondent regarding the termination of his employment.[11]On 4 February 2020, the claimant contacted ACAS. He dealt with a Sharon Hughes. She told the claimant that he had three months from the date of termination to lodge a claim in the Employment Tribunal.[12]Following efforts at conciliation, Ms Hughes recommended that conciliation should continue for the further two weeks permitted, and the claimant took advantage of that extension.[13]As no resolution was achieved, an EC certificate was issued on 18 March 2020.[14]Thereafter, within the next week, the claimant downloaded and completed an ET1 form. He sent the completed form by e-mail to Sharon Hughes at ACAS on 23 March 2020.[15]That was on or around the date that the Prime Minister announced a national lockdown due to the covid pandemic.[16]The claimant’s mental health took a turn for the worse around that time.[17]The claimant was under considerable stress at that time. He was liaising with the respondent and then the ICO about a subject access request. Shortly prior to losing his job he had raised a civil claim regarding a puppy which he had purchased from a breeder which had suffered various infections. He was facing criminal charges in relation to a charge of dangerous driving which was subsequently dropped. His mother in law, who had been suffering from terminal cancer and who was cared for by his wife, died in July. All of this put considerable strain on his marriage and his mental health.[18]In March the claimant had attempted suicide. He consulted his GP in this regard on 12 March 2020.[19]The claimant took another overdose on 23 or 24 May, after which the claimant was admitted to hospital, but later released. He took another overdose on 27 May and was admitted to hospital by ambulance. He had a short stay in a psychiatric hospital and was discharged on 3 June 2020.[20]After forwarding the ET1 to Sharon Hughes on 23 March, the claimant did not contact ACAS or the ET to aks about progress because from his understanding all court cases were at a standstill due to the covid pandemic until further notice. He came to this belief because he had been advised that both the civil case and the criminal case he was involved in could not progress at this time.[21]It was not until the end of June that the claimant contacted Ms Hughes for progress relating to his employment tribunal application.[22]It was at this time that she explained his mistake. She had understood that when he had sent her the ET1 form by e-mail that he was simply sending her a copy of the form which he had submitted to the Tribunal.[23]The claimant then contacted the Employment Tribunal and was told on the telephone that the ET1 could not be send in electronically and that an e-mail version could not be accepted. He therefore sent the ET1 form recorded delivery with a covering letter dated 2 July 2020, explaining why it was late.[24]The ET1 was accepted as presented on 6 July 2020. Claimant’s submissions[25]Mr Ferguson relied on what he had said in evidence, and on the letter which was prepared for him by the CAB dated 24 February 2021.[26]In that letter the CAB submitted on behalf of the claimant that the respondent was aware that Mr Ferguson had concerns about his treatment by them and specifically about his dismissal and that Mr Ferguson made clear his intention to raise a claim against his former employers within the time frame allowed by the ECC.[27]With regard to the unfair dismissal claim, this can be allowed late where it was not reasonably practicable to lodge the claim in time. Applying the principles set out in the decision of the Court of Appeal in Lowri Beck to the facts of this case, there is a clear intention to pursue a claim to the Tribunal. There had been an effort to resolve the matter through ACAS so the employers are fully aware of the nature of the claim and the factual background. All that the claimant had done was make a mistake which would have been noted and corrected had it not been for the unprecedented situation which prevailed at the time. The approach taken by the Tribunal service at the start of the pandemic will be within judicial knowledge but the substantive point is that there was a total freeze on any judicial business from around March 2020 [as he understood it].[28]Mr Ferguson had throughout acted in accordance with established procedures. He made an error in where he submitted his ET1 form and this was not noted or corrected at the time. This was a reasonable error which the Tribunal should excuse. Even if the Tribunal may hesitate in some cases to excuse this error it should recognise the specific issues relating to Mr Ferguson and in particular his mental health issues, and [as he understood it] the evidence would show that Mr Ferguson had severe mental health issues at the time when the application to the Tribunal should have been made. If the Tribunal were to consider that he was disabled this would trigger the duty to make a reasonable adjustment under the Equality Act.[29]With regard to the disability claim, this can be allowed late where it is just and equitable to do so. This test has been interpreted by the courts as being a very wide and flexible test, for example in Abertawe Bro v Morgan, where the Court of Appeal confirmed that factors which will always be relevant are length of and reasons for delay and whether the delay has prejudiced the respondent (for example by preventing or inhibiting it from investigating the claim while matters were fresh). Here there is no prejudice to the employer given the fact that matters were canvassed in the ACAS process, which had only recently been completed and so there was no lengthy delay. Further, by reference to the overriding objective, account should be taken of the fact that the claimant is representing himself while the other party has the benefit of being represented by a qualified and experienced solicitor.[30]Following oral submissions from Mr Johnstone, Mr Ferguson argued that Mr Johnstone’s submissions failed to take account of his diagnosis of ADHD, and that this explains why he did not understand how to submit the ET form and the mistake which he made. Respondent’s submission[31]Mr Johnstone submitted that notwithstanding the medical evidence and the severity and complexity of the claimant’s condition, this has no direct relevance on the delay in this case which must be attributed to a mistake.[32]However, the claimant was able to locate and prepare an ET1 form, which clearly indicates where it is to be returned, and to deal with early conciliation; he knew how to make a SAR and to engage with the ICO. He puts his failure to send the ET1 to the correct place down to inexperience but the majority of claimants are in the same position.[33]Although at least one of his drugs has the potential to impact on his memory and understanding, there is no evidence that this is the case, and one of the medical reports suggests he has “no impairment of decision-making abilities or capacity and his insight was intact”. He was able to carry out a technical job which taking the medication which had no impact on driving.[34]He was able to engage with these matters for the majority of the time following his dismissal, apart from the week in March and again at the end of May when he was suffering symptoms/in hospital. While the claimant has complex medical needs this does not explain why he lodged the ET form with the wrong organisation.[35]The claimant is well versed in engaging in litigation, given his reference to the civil claim, the criminal proceedings and the GDPR claim which is a formal process with time limits.[36]This background is relevant for the different two tests.[37]On reasonable practicability, his explanation boils down to the fact that he made a mistake but was otherwise able to engage with the process including completing the ET1 and sending it to ACAS. It was therefore reasonably practicable to bring the claim.[38]While he lodged the claim shortly after he realised his mistake, still there was a long period, from 29 April, when the claim should have been lodged, so it was not lodged within a reasonable time thereafter.[39]He argued that it was not just and equitable to extend time, and for the same reasons the extension should not be allowed. There is no presumption that discretion will be exercised and there is significant case law that it should be used sparingly.[40]It is necessary to look at the facts of each case, and while on the face of things the claimant has an explanation for the delay, on closer consideration there is no reason why it could not be lodged, given that his medical history is not relevant to the reason why he made the mistake.[41]The respondent in this case will suffer both primary and forensic prejudice. It is clear the claimant’s recollection is already starting to fade and this will be the case for all relevant witnesses.
Relevant law
[42]The law relating to time limits in respect of unfair dismissal is contained in the Employment Rights Act 1996. Section s111(2) states that an Employment Tribunal shall not consider a complaint unless it is presented before the end of the period of three months beginning with the effective date of termination or within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.[43]Thus, where the claim is lodged out of time, the tribunal must consider whether it was not reasonably practicable for the claimant to present the claim in time, the burden of proof lying with the claimant. If the claimant succeeds in showing that it was not reasonably practicable to present the claim in time, then the tribunal must then be satisfied that the time within which the claim was in fact presented was reasonable.[44]The Court of Appeal has recently considered the correct approach to the test of reasonable practicability (Lowri Beck Services Ltd v Brophy [2019] EWCA Civ 2490). Lord Justice Underhill summarised the essential points as follows: 1) The test should be given “a liberal interpretation in favour of the employee” (Marks and Spencer plc v Williams-Ryan [2005] EWCA Civ 479, which reaffirms the older case law going back to Dedman v British Building & Engineering Appliances Ltd [1974] ICR 53); 2) The statutory language is not to be taken as referring only to physical impracticability and for that reason might be paraphrased as whether it was “reasonably feasible” for the claimant to present his or her claim in time: see Palmer and Saunders v Southend-onSea Borough Council [1984] IRLR 119…. 3) If an employee misses the time limit because he or she is ignorant about the existence of a time limit, or mistaken about when it expires in their case, the question is whether that ignorance or mistake is reasonable. If it is, then it will [not] have been reasonably practicable for them to bring the claim in time (see Wall’s Meat Co Ltd v Khan [1979] ICR 52); but it is important to note that in assessing whether ignorance or mistake are reasonable it is necessary to take into account any enquiries which the claimant or their adviser should have made; 4) If the employee retains a skilled adviser, any unreasonable ignorance or mistake on the part of the adviser is attributed to the employee (Dedman)… 5) The test of reasonable practicability is one of fact and not law (Palmer).[45]Section 123 of the Equality Act 2010 states that a complaint under that Act must be made to the employment tribunal before the end of three months starting with the date of the act of discrimination, or such other period as the employment tribunal thinks just and equitable. Conduct extending over a period is to be treated as done at the end of the period; failure to do something is to be treated as occurring when the period in question decided upon it.[46]The discretion to extend time is broader than under the “not reasonably practicable” formula (DPP v Mills 1998 IRLR 494), and the court’s power to extend time on the basis of what is just and equitable entitles the tribunal to take into account anything which it judges to be relevant (Hutchison v Westward Television Ltd 1977 IRLR 69).[47]The onus is on the claimant to persuade the tribunal that it is just and equitable to extend time, but the exercise of discretion is the exception rather than the rule (Robertson v Bexley Community Centre 2003 IRLR 434).[48]Whilst not mandatory, the list of factors contained in section 33 of the Limitation Act 1980 is a useful checklist of relevant factors (British Coal Corporation v Keeble 1997 IRLR 336), namely: 1) Prejudice; 2) The length of, and reasons for the delay; 3) The extent to which the cogency of evidence is likely to be affected by the delay; 4) The extent to which the party sued has co-operated with requests for information; 5) The promptness with which the claimant acted once he knew the facts giving rise to the cause of action; and 6) The steps taken by the claimant to obtain appropriate advice once he knew of the possibility of taking action.[49]The Court of Appeal in Southwark London Borough Council v Afolabi 2003 ICR 800 confirmed that, while that list provides a useful guide for tribunals, it need not be adhered to slavishly. While it is important that the tribunal does not leave out of account any important factor, the s33 factors should not be elevated into a legal requirement. The Court in that case went on to suggest that there are two factors which are almost always relevant when considering the exercise of any discretion whether to extend time: the length of, and reasons for, the delay; and whether the delay has prejudiced the respondent.[50]The Court of Appeal in Adedeji v University Hospitals Birmingham NHS Foundation Trust 2021 EWCA Civ 23 recently confirmed that a rigid adherence to what have become known as the Keeble factors is to be discouraged when dealing with what is a very broad general discretion on the just and equitable question. Tribunal decision[51]It is not disputed that the claimant’s employment ended on 18 December 2019. That therefore is the effective date of termination and the date from which any time limit should run. Ordinarily, the time limit would expire on 17 March 2020 but the claimant commenced early conciliation on 4 February 2020. The early conciliation period lasts until ACAS issue the EC certificate, which in this case was on 18 March 2020. This gives the claimant the benefit of a 43 day extension to the limitation period, which would thus expire on 29 April 2020.[52]The claim should therefore have been lodged by 29 April 2020. The ET1 was not lodged until 6 July 2020. The claim is thus lodged more than two months late. There is no dispute about this.[53]There being claims for both unfair dismissal and disability discrimination, the focus for the Tribunal must therefore be to consider two different questions which involve the exercise of discretion, in respect of the unfair dismissal claims (and other wages claims) whether it was reasonably practicable for the claimant to have lodged the claim in time, and in respect of the discrimination claim whether it was just and equitable to extend time. Given that the just and equitable test is broader, I deal with it first. Is it just and equitable to extend time?[54]The focus when it comes to the disability discrimination claim is only on the question whether it is just and equitable to extend time.[55]Although the Keeble factors are relevant as discussed above they are not a checklist, and all are not relevant here, but certain factors will almost always be relevant, namely the length and reason for the delay and the prejudice to the respondent. These were the main factors at play in this case, and I considered these first and then other factors which were raised by the parties. Length of the delay[56]As discussed above, although time would normally have run until 17 March 2020, given extensions due to ACAS conciliation, the time limit would in fact have expired on 29 April. Since the claim was not lodged until 6 July, the delay is approximately two months and one week. The reason for the delay[57]The claimant has given evidence explaining the delay in this case, which is supported by medical evidence.[58]The claimant was aware of the three-month time limit. He was getting advice from ACAS who had made him aware of it. The claimant’s ignorance was not about the three-month time limit, but about where to send the ET1 form to. He wrongly thought it should have been sent to ACAS.[59]Ordinarily it might be expected that ACAS would notice the error. Ms Hughes however subsequently stated that she had assumed that the claimant was just sending her a copy. Notwithstanding, that error may well have been picked up before the expiry of the time limit but for the unprecedented covid pandemic.[60]This goes some way to explaining the reason for the delay because but for the pandemic the error may have been picked up.[61]The focus in this case has to be on the fact that the claimant made a mistake. His mistake was in sending the claim form to ACAS and not appreciating that he should have sent it to the Employment Tribunal.[62]However, having sent it to ACAS and having heard nothing, the claimant took no steps to follow up or find out about the progress of his claim. During this period (from 23 March to end June) the claimant has lodged medical evidence to support his evidence that he was suffering from (quite extreme) mental health difficulties during that time. He was suffering from considerable stress, including dealing with a civil claim, dealing with a criminal charge, dealing with his mother in law’s terminal illness, all of which placed inevitable pressures on his marriage and mental health.[63]Even if the claimant’s mental health had been such that he could have made enquiries about progressing his claim, this coincided with the time when the country was in almost complete lockdown. The claimant was labouring under the misapprehension that the courts were at a standstill. He understood this from correspondence he had received relating to his civil and criminal claims. I noted that the CAB adviser was also under the mistaken understanding that there was a “total freeze” on “judicial business” during this period. As I understand it, it is correct to say that the Scottish courts were not operating during much of this period. However, the Employment Tribunal is run by HMCTS not SCTS and has been operating to some extent at least throughout the whole of the pandemic. I accept therefore that is a reasonable assumption to make given the courts in Scotland were essentially at a standstill, if not the Employment Tribunal.[64]Mr Johnstone submits that the mistake cannot be explained by the claimant’s medical difficulties. He submitted that during most of the period in question (from December through to July) the claimant showed himself to be capable to dealing with a civil claim, a criminal claim and with the ICO. Apart from when he had particular mental health challenges in March and again in May, the claimant was not prevented from lodging a claim. His medical condition cannot explain or account for his mistake.[65]Mr Ferguson made forceful submissions to the contrary, focusing on the manifestations of ADHD. He explained in evidence that as a result of this condition his ability to complete and comprehend documents is impaired and he struggles to read and understand documents, which he finds stressful and frustrating.[66]I did not agree that it was black and white in the way that Mr Johnstone presented it. It cannot be said that the only times when Mr Ferguson’s mental health had an adverse impact on him was the week in March (when he attempted suicide) and the week in May (when he was in a psychiatric hospital). Clearly the claimant’s mental health was fragile during the whole of the period from March to May but in any event the claimant thought that he had done what he needed to do. In fact, the reason for the delay is to be attributed as much to his misunderstanding about lockdown, and to ADHD, as to his mental health. Prejudice to the respondent[67]Mr Johnstone argued that in addition to “primary” prejudice, by which I understood him to mean that the respondent was otherwise put to the time and expense of defending a claim which was on the face of it time barred, he argued that there is also “forensic prejudice” in this case. The claimant is already showing that his recall regarding events is vague. While I accept that it is inevitable that memories will fade, in this case the delay was only two months.[68]Although the Employment Tribunal has been carrying on business, the pandemic has impacted to the extent that there are some delays in hearing cases so that it is likely there would be some delay in listing cases anyway.[69]But more significantly I accepted the submission made on behalf of the claimant by the CAB that this is a case where the respondent was aware of the claimant’s intention to lodge a claim and more importantly the respondent had been involved for some six weeks with ACAS in attempting to negotiate a settlement in this case. This is not a case where there has been a long lapse of time during which the respondent was not aware that a claim would be raised, and it could not be said that the respondent will now be put to the trouble of investigating a stale claim. I came to the view therefore that the prejudice to the claimant in not having his claims considered by the Tribunal outweighed any potential prejudice to the respondent in dealing with the delay. Reasonable adjustments[70]The CAB submitted on behalf of the claimant that were the Tribunal to consider that the claimant is disabled, then it should make a reasonable adjustment. As I understood it that was to argue that allowing the claim in late would be a reasonable adjustment. The Employment Tribunal Service is of course alert to the need to make reasonable adjustments in appropriate circumstances. However I take account of the claimant’s mental health and particularly ADHD as a factor which weighs in favour of me exercising my discretion. Equal footing[71]I am also alert to the fact that, as submitted by the CAB, the claimant is an unrepresented party, bearing in mind the overriding objective to deal with cases fairly and justly so far as practicable, to ensure parties are managed on an equal footing.[72]For these reasons I conclude that it is it is just and equitable to extend time. Was it reasonably practicable for the claimant to present his claim in time?[73]This test is different from the “just and equitable” test, and indeed the scope of my discretion is narrower.[74]I accept that the burden of proof is on the claimant, and that following Palmer the test is whether it was “reasonably feasible” for the claim to have been lodged in time. However, this question has recently been considered by the Court of Appeal in the case of Lowri and five guiding principles from previous case law have been identified, as set out above, which I have considered.[75]Although the claimant could complete and submit an ET1 claim form albeit to the wrong organisation, the fact is it was therefore physically practicable for him to have lodged the claim. However, reasonably feasible goes beyond that, and I am enjoined to look beyond simply physical impracticability. The claimant’s mental health is certainly relevant but I take the view that the claimant’s condition that is ADHD is also relevant. I took account of his explanation about the symptoms of that condition.[76]Here on the question of whether the ignorance was reasonable, it is clear in this case that the claimant was well aware of the three-month time limit, so I focus on the question whether his ignorance with regard to where to send the claim form to was reasonable. Mr Johnstone submitted that it was clear where the claim form was to be sent to from the form itself, although I do not necessarily agree, in any event the majority of claimants will complete forms online so will not require to give consideration to where to send forms to (and indeed I note the fact that they cannot be send in by e-mail). Mr Ferguson had been dealing with ACAS and made the assumption that this was the correct organisation to deal with the application. Again, I take account of the claimant’s diagnosis of ADHD when assessing whether the claimant’s ignorance[77]This is a question of fact for me to determine, not law. I take account of these difficulties in assessing the extent to which the claimant’s failure to send in the ET1 form to the correct organisation given the factual context of this claim meant that it was not reasonably practicable for him to lodge his claim in time. I have therefore come to the view, bearing in mind that the test should be “given a liberal interpretation in favour of the employee”, that it was not reasonably practicable for the claimant to have lodged his claim in time. Did the claimant lodge his claim within a reasonable time thereafter?[78]I understood Mr Johnstone to argue that if the Tribunal were to conclude that it was not reasonably practicable for the claimant to lodge the claim in time, that he did not do so as soon as was reasonable.[79]However, in this case, it is clear from the facts that the claimant acted speedily as soon as he realised his mistake. He stated that he had spoken to Ms Hughes at the end of June, then spoken on the telephone to ET staff immediately thereafter. The letter which he wrote explaining his mistake and sending in the ET1 form was dated 2 July 2020, with the ET1 arriving in the post on 6 July 2020.[80]Given that background, I accept that the claimant lodged his claim within such time as was reasonable following it becoming reasonably practicable. Conclusion and summary[81]I have concluded that it is it is just and equitable to extend time for the reasons set out above. I conclude therefore that the Tribunal does therefore have jurisdiction to hear the disability discrimination claim.[82]Although the test is different, and stricter, for unfair dismissal, I came to the view in the particular circumstances of this case, and taking account in particular of ADHD as well as mental health, that is was not reasonably practicable to lodge the claim in time and the claimant lodged within a reasonable time thereafter. The Tribunal therefore also has jurisdiction to hear the unfair dismissal claim (and if relevant any other wages claims). Next steps[83]It is important that progress in now made in progressing this claim. Mr Johnstone was not able to say what he understood the next steps to be because he has been assisting Mr Muirhead with this case. I noted from the PH note issued following the telephone case management preliminary hearing which took place on 27 October 2020 that disability was not yet conceded at that point. This would normally require a further preliminary hearing.[84]That however was before the respondent had seen the claimant’s medical records and it may be that the respondent is now able to concede the question of disability status bearing in mind the fact that the Tribunal will assess the situation absent medication.[85]While the respondent may not concede that they knew the claimant was disabled the question of knowledge is of course another matter and would normally be considered when hearing evidence about the other claims to be pursued in this case.[86]Notwithstanding I have decided that it is appropriate to list this case for another CMPH by telephone to assess whether another preliminary hearing is required and if not to list and prepare for a final hearing. This case should therefore now be listed for a telephone case management preliminary hearing (one hour).
Background
[1]This was a final hearing in respect of claims set out in a claim form sent to the Employment Tribunal on 6 July 2020. The previous preliminary hearings focused on the issues of time bar and case management which culminated in May 2021 in the production of a disability impact statement and further and better particulars of claim and response.[2]At the case management preliminary hearing on 2 August 2021 it was recorded that the respondent accepted that the claimant was a disabled person possessing the protected characteristic of disability in terms of section 6 of the Equality Act 2010 (the EqA) at the material time for the purposes of his claim being in the period 16 July 2018 to 27 December 2019 by reason of his diagnosed medical conditions (mental impairments) of Attention Deficit Hyperactivity Disorder (ADHD), Post Traumatic Stress Disorder (PTSD) and depression and anxiety. While the respondent accepted that the claimant was a person possessing a protected characteristic of disability the respondent maintained that it did not know and could not reasonably have known at the material time that the claimant was disabled in terms of section 6 of the EqA.[3]It was also noted that the complaints were:a. Discrimination under section 13, section 15, sections 20 and 21 and 26 of the EqA;b. Protected disclosure under section 47B of the Employment Rights Act 1996 (the ERA) being a complaint under section 48 of the ERA that he has been subject to a detriment because he made a qualifying and protected disclosure.c. Unfair dismissal(i) under section 100 of the ERA of being a complaint of dismissal for reason of having raised a health and safety issue/concern; and(ii) under section 103A of the ERA being a complaint that the claimant was dismissed for the principal reason of having made a qualifying and protected disclosure.d. Claims of holiday pay and notice pay and arrears of wages.[4]The final hearing was conducted in person. The claimant withdrew his claims of compensation for paid annual leave entitlement accrued but not taken at the effective date of termination and the underpayment in respect of his weeks’ notice entitlement and his week of lying time. These claims having been withdrawn were dismissed under rule 52 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (the Regulations).[5]Witnesses gave their evidence orally. The claimant gave evidence on his own account. His wife, Carol Ann Ferguson gave evidence on his behalf. For the respondent the Tribunal heard evidence from Heather Hepburn, Director, Robert John Hepburn, Director and George Stirling, selfemployed HGV Driver.[6]The parties provided a joint set of productions. The Tribunal was also referred to a set of productions provided by the claimant for the preliminary hearing on time bar in March 2021 which comprised of medical evidence relating to the claimant. While a supplementary set of productions was produced by the respondent none of the witnesses were referred to these documents during the course of the final hearing.[7]After hearing the evidence, the representatives provided written submissions on which addressed the Tribunal orally.[8]The Tribunal has set out the issues that it had to determine, the relevant law and its findings in fact. Not every fact that could be found in the documents or all evidence has been set out; the Tribunal has set out the facts as found that are essential to the Tribunal’s reason or to its understanding of the important parts of the evidence. The Tribunal has carefully considered the submissions during its deliberations and has dealt with points made in submissions while setting out its facts, the law and the application of the law to those facts. It should not be taken that a point was overlooked, or facts ignored because the fact or submission is not part of the reasons in the way that it was presented to the Tribunal by a party.
List of Issues
[9]The parties produced an agreed list of issues that required to be determined. This was discussed at the start of the final hearing. The list was revised given that some of the claims had been withdrawn. Having heard the parties’ submissions when deliberating the Tribunal considered the issues in the following order.a. Was the reason or principal reason for dismissal(i) that the claimant raised a health and safety concern with the respondent or(ii) that the claimant made a protected disclosure? The claimant relies on information disclosed in an email sent to the respondent on 16 December 2019 (the December Email) and during a meeting with the respondent on 18 December 2019 (the December Meeting). The Tribunal requires to consider if there was a disclosure of information that the health or safety of any individual had been or is likely to be endangered and was it made in the public interest and was that belief reasonable.b. Was the claimant subject to any other detriment on the ground that he made a protected disclosure?c. Did the respondent not know or could not reasonably be expected to know that the claimant was disabled?d. Did the respondent treat the claimant less favourably that a hypothetical comparator because of his disability? The claimant relied on dismissal as the less favourable treatment.e. Did the respondent apply a provision, criteria or practice (PCP). The PCP relied upon by the claimant is the respondent’s communications style. The respondent denies that this is a PCP.f. If so, did the PCP place the claimant at a substantial disadvantage in comparison with people who are not disabled?g. Did the respondent know, or could it reasonably have been expected to know that the claimant was likely to be placed at a disadvantage?h. What steps could have been taken to avoid the disadvantage? The claimant suggests that there should have been a variation to the communication style.i. The claimant asserts that as a result of his disability he has poor communication. The claimant asserts that he was treated unfavourably because of his poor communication skills culminating in his dismissal. Was this unfavourable treatment arising in consequence of the claimant’s disability?j. Was the treatment a proportionate means of achieving a legitimate aim? The respondent says that a legitimate aim is the requirement for the respondent’s employees to observe reasonable standards of communication in the workplace.k. Did the respondent engage in unwanted conduct related to a disability? The claimant asserts that the respondent shouted at him when cars were not roadworthy. The Tribunal needs to ask if the conduct took place; was the conduct unwanted; and did it relate tol. Did the conduct have the purpose of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant? If not, did it have that effect?m. What are the claimant’s financial losses? Has the claimant taken reasonable steps to replace his loss of earnings? If not, for what period of loss should the claimant be compensated?n. What injury of feelings has any discrimination caused? How much compensation should be awarded for that?
The Relevant Law
[10]Section 100(1)(c) of the ERA states that a dismissed employee will be regarded as unfairly dismissed if the reason (or if there is more than one the principal reason) for the dismissal was that there was no representative or safety committee and the claimant brought to his employer’s attention by reasonable means circumstances connected with which he reasonably believed were harmful or potentially harmful to health or safety.[11]Section 103A of the ERA states that an employee who is dismissed shall be regarded as unfairly dismissed if the reason (or if there is more than one the principal reason) for the dismissal was that the claimant made a protected disclosure.[12]Section 43B of the ERA defines what disclosures qualify for protection. This includes under section 43B(1)(d) any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show that the health and safety of any individual has been or is likely to be endangered.[13]Section 47B of the ERA states that a worker has the right not to be subjected to any detriment by any act or deliberate failure to act by his employer done on the ground that he made a protected disclosure.[14]Direct discrimination is defined in section 13 of the EqA. The provision is satisfied if there is less favourable treatment because of a protected characteristic. There must be less favourable treatment than an actual or hypothetical comparator whose circumstances are not materially different from the claimant (section 23 of the EqA).[15]Section 15(1) of the EqA defines discrimination arising from disability. The provision requires there to be:(a) unfavourable treatment;(b) because of “something;(c) the “something” has to have arisen in consequence of the claimant’s disability; and(d) which the respondent cannot show was a proportionate means of achieving a legitimate aim. Section 15(2) of the EqA states that section 15(1) does not apply if the respondent shows that it did not know, and could not reasonably have been expected to know, that the claimant had the disability.[16]Section 20 of the EqA defines the duty to make reasonable adjustments. To succeed, there requires to be:(a) a PCP applied by the respondent which;(b) puts the disabled person at a substantial disadvantage;(c) in relation to a relevant matter in comparison with persons who are not disabled; and(d) a failure by the respondent to take such steps as it is reasonable to have to take to avoid the disadvantage. Section 21 of the EqA states that a failure to make reasonable adjustments is discrimination.[17]Section 23 of the EqA states that on a comparison of cases for the purposes of section 13, 14 and 19 of the EqA, there must be no material difference between the circumstances relating to each case. Section 23(2) of the EqA specifically states that the circumstances relating to a case include a person’s abilities if on a comparison for the purposes of section 13 of the EqA the protected characteristic is disability.[18]Section 26 of the EqA provides that unwanted conduct related to a protected characteristic which has the purpose or the effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment is unlawful. In deciding if the conduct has the effect the Tribunal must take into account the person’s perception, the other circumstances of the case and whether it is reasonable to have had that effect.[19]Section 136 of the EqA provides that if there are facts from which the court decides, in the absence of any other explanation, that a person contravened the provisions of the EqA the court must hold that the contravention occurred. Findings in Fact
Introduction
[20]The claimant has suffered from anxiety and depression since the 1990s. Following serving time in Afghanistan as a private military contractor he was diagnosed in 2010 with Post Traumatic Stress Disorder (PTSD). Throughout his life he has had a mental impairment which was diagnosed in 2017 as Attention Deficit Hyperactivity Disorder (ADHD). The diagnosis assisted the claimant’s understanding that he behaved in the way he did because he had a medical condition.[21]The claimant is a disabled person in terms of the EqA by reason of his diagnosed medical conditions. There are symptoms which are common to the conditions: insomnia, anxiety, irritability and difficulty concentrating. His depression and PTSD give the claimant periods of low mood and lack of motivation. The condition of ADHD affects the claimant’s behaviour. He is restless and predisposed to act on impulse. The claimant can be hyper focused on matters of interest. He has difficulty keeping quiet and often speaks out of turn, uttering responses and interrupting others. His has an inability to deal with stress. He can be extremely impatient. The claimant often has negative thoughts and feelings leading to ongoing and distorted beliefs about himself and others. Distorted thoughts about the cause or consequences of events lead to him wrongly blaming himself or others. He can often feel detached or estranged from others, can be overly watchful of his surroundings in a suspecting way. The claimant is on medication for his conditions.[22]The claimant is a Master Technician of Scania and other makes of trucks including Mercedes, DAF, Volvo and a wide range of trailers. He is computer literate and can work with computer systems which are fitted into vehicles. He has qualifications for welding and spray painting. The claimant is very interested in mechanics. His disability makes the claimant focussed on doing tasks. He struggles with decision making and prioritisation. He needs structure and routine to avoid becoming anxious, judgmental and self-critical.[23]The respondent is a limited company that provides vehicles and equipment to the television and film industry. The respondent has two directors Heather Hepburn and her husband Robert Hepburn. Mrs Hepburn and Mr Hepburn are also directors of Moovit Limited which was incorporated as a haulage company employing around six employees: drivers and one mechanic. Moovit Limited was based in Paisley.[24]Around April 2018 Mrs Hepburn and Mr Hepburn bought a farm in Slamannan, near Falkirk. They decided to relocate the respondent’s activities to the farmyard and buildings and cease operating from Paisley. Around this time, they also decided to reduce activities undertaken by Moovit Limited as there was sufficient financial return. The mechanic employed by Moovit Limited decided that he did not wish to transfer to the new location. Mrs Hepburn and Mr Hepburn approached some people in the industry to ascertain if they knew of a mechanic who may be interested in undertaking work for the respondent.[25]Colin McNair who had worked for DAF was a mutual acquaintance of the claimant and the respondent. Mr McNair was aware of the claimant’s disabilities. Mr McNair recommended the claimant to Mrs Hepburn describing the claimant as a good mechanic but that he could be “hard work”. The claimant was invited to attend an interview. The interview – May 2018[26]Mrs Hepburn conducted the interview which took place in Paisley around May 2018. The claimant provided his CV. The claimant discussed his personal background and said that he had PTSD and ADHD. He said that the conditions were medically controlled.[27]Mrs Hepburn said that the job would involve working in Slamannnan servicing the trucks and trailers operated by Moovit Limited every six weeks and the trucks and trailers operated by the respondent every 11 weeks. Approximately 40 vehicles required inspections with a view to highlighting potential defects, ensuring that defects were rectified before any inspection or MOT. The job also required repairing/ordering parts for defects identified by the drivers engaged by the respondent and Moovit Limited. The claimant would mostly be working alone. Mr Hepburn attended part of the interview but was not present throughout.[28]After the interview Mrs Hepburn telephoned a former employer Volvo Truck and Bus for a reference and wrote to the claimant’s employer, who was aware of his disability.[29]The claimant was offered employment with Moovit Limited which he accepted. July 2018 to August 2019[30]The operations of the respondent and Moovit Limited moved to Slamannan in early July 2018. The claimant assisted with the move.[31]Moovit Limited employed the claimant from 16 July 2018. He required to work 50 hours per week (7am - 4pm Monday to Friday and five hours on a Saturday). The claimant required to give the company two weeks’ notice of termination. Moovit Limited required to give statutory minimum notice. There was a two-month probationary period. The terms and conditions of employment stated that smoking on company premises was prohibited except in external areas specifically designated for that purpose. Breach of the regulation may result in disciplinary action being taken.[32]Mrs Hepburn and Mr Hepburn resided in the farmhouse at Slamannan. As well as being a Director, Mrs Hepburn was Transport Manager. Mrs Hepburn dealt with all paperwork relating to the businesses of Moovit Limited and the respondent. Neither company had a representative for workers on health and safety or a safety committee.[33]Mr Hepburn was involved in acquiring, upgrading and selling trailers and moving them around the country. He was not a mechanic but had knowledge about vehicles and trucks. He often worked away from home for two or three days at a time. When at Slamannan he would work around the farmyard.[34]Moovit Limited employed three drivers. Over time this reduced until by September 2019 the claimant was the only employee of Moovit Limited.[35]Moovit Limited and the respondent engaged subcontractor drivers for haulage and moving trailers. George Stirling and John Mullen are subcontractor HGV drivers. They would also undertake general duties in the farmyard. Their main source of work was from Moovit Limited and the respondent. The respondent also subcontracted facilities management for trailers and trucks hired to television and production companies and were on outside location.[36]The subcontractor drivers attended Slamannan to collect and drop off vehicles. They were to inspect the vehicles before driving and complete appropriately defect sheets which were to be returned to Mrs Hepburn or posted through the letterbox with keys if the vehicle was returned in the early hours of the morning which was often the case. The defects sheets were not always completed by the drivers. The drivers were sometimes reluctant to report defects for concern about their jobs or the expense being deducted from wages. Defects to vehicles were sometimes communicated by the drivers orally to Mrs Hepburn or Mr Hepburn. Mrs Hepburn would then complete a defect sheet for the driver. Defects were sometimes only discovered when a vehicle was scheduled to be driven that day.[37]There were three outbuildings the biggest of which (150 ft x 100 ft) was a shed. It had a corrugated Perspex roof. It was opaque but dirty with several panels missing. The lighting was inadequate. There was an electric generator at the front door with cable extensions for electricity to the far side of the shed.[38]The claimant understood that the shed was to be fitted out as a workshop. He appreciated that this would require to be done over time. He was enthusiastic about assisting Mr Hepburn and Mrs Hepburn achieve this.[39]Between June 2018 and February 2019, the claimant attended a fortnightly clinic in Stonehouse with Ms Lesley MacDonald, Senior Charge Nurse in Psychological Therapies. Mrs Hepburn and Mr Hepburn knew that the claimant was attending counselling for his medical conditions. He took time off work to do so and would make up the hours.[40]The claimant also continued to attend clinics at Hairmyres Hospital with his consultant psychiatrist Dr Roy who had diagnosed his ADHD and Dr Semple his consultant psychiatrist. He was prescribed medication to help manage the symptoms of his disabilities.[41]Initially Mrs Hepburn provided the claimant with a calendar noting when vehicles were due inspections or MOTs. Later in 2018 she provided information on a spreadsheet. She provided the claimant with inspection sheets that he had to complete and sign for DVLA once an inspection took place. The claimant used a personal notebook to keep details of work that he was undertaking. Later when he was clean, he would go into a portacabin situated outside the shed to transfer the information from his notebook to the inspection sheets. The claimant would also complete blank maintenance sheets recording the work done on vehicles and parts that were ordered. Mrs Hepburn would also provide the claimant with defect sheets that she had been provided by drivers or she had completed on their behalf. Mr Hepburn would also give oral instructions to the claimant when he wanted work done on particular vehicles.[42]Towards the end of October 2018, the portacabin which had been situated outside the shed was moved inside. The claimant would use part of it for changing into/from his work clothes and to complete paperwork such as inspection sheets and maintenance sheets. It was also used by the respondent for the storage of props. Mr Hepburn smoked in shed and the portacabin. The claimant complained about this.[43]The claimant came in to work early and left late as he was not able to go home until the job was completed due to his exacting standards dictated by his perfectionist traits. The claimant discussed this with Ms MacDonald and agreed to try and restrict his overworking by setting specific start and finished times and if he needed equipment to do his job, he would request this from the respondent. The claimant was hesitant about doing this as he believed he would be judge negatively by the respondent and not seen as a team player. He catastrophised that he would be dismissed.[44]Mrs Hepburn considered that while it was a great trait for the claimant to work beyond his contractual hours to finish the job any overtime had to be balanced against the cost to the business. She told the claimant that any overtime needed to be discussed. She considered it necessary to put in place a more disciplined end to the claimant’s working day by visiting the shed and reminding the claimant of the need to complete his work and go home unless overtime was agreed. Mrs Ferguson would also telephone the claimant and remind him to prepare to finish his work.[45]During 2019 some modifications were made to the shed where the claimant worked. The claimant spoke to Mr Hepburn regarding lighting and they discussed sourcing pneumatic and power tools. The shed was also used for storage. There were cables, chemicals for mobile toilets, and a mobile lawnmower adjacent to the claimant’s workspace. At the back of the shed there were tyres and on the other side of his workspace there were mobile space diesel heaters and a diesel fuel tank. There was also a diesel generator. Some but not all of the missing roof panelling was replaced.[46]Approximately 50 feet from the shed there was an outside toilet with cold running water. There was no hot running water. The claimant brought in a washing machine and tumble dryer so that he could wash his work clothes. The claimant also brought in a kettle for his personal use.[47]The claimant assisted Mr Hepburn and Mrs Hepburn when they converted part of an outbuilding into a private area adjacent to the farmhouse containing a sauna, gym, hot tub and shower. Initially the claimant was permitted to access the shower when he had been working on waste retrieval vehicle.[48]The claimant raised with Mrs Hepburn the need for improved pre/advanced planning to ensure that he did not receive instructions to repair vehicles at the last minute. The claimant felt that he was often given contradictory instructions as to what he was to prioritise. The claimant considered that the sub-contractor drivers often failed to complete the defect sheets, or any defects were communicated to Mr Hepburn or Mrs Hepburn by other means and the claimant was informed at the last moment. Due of his condition the claimant felt that he was not considered to be a team player which would make him feel upset. This would fester with the claimant and he would ruminate about comments made by colleagues or Mr Hepburn.[49]The clamant had difficulties asserting himself at work. He received instructions from Mrs Hepburn about work relating to inspections and maintenance. Mr Hepburn would give the claimant separate verbal instructions if he considered that repairs were needed on other vehicles which were to be hired or used for haulage. The claimant had difficulty prioritising the work allocated to him. Mrs Hepburn and Mr Hepburn knew that the claimant was confused about understanding priorities. Mrs Hepburn said that the instructions would be channelled through Mr Hepburn as he had more technical knowledge. Mr Hepburn was not always based at Slamannan. The claimant would seek clarification from Mrs Hepburn as to what work was to be prioritised.[50]The claimant considered that his relationship with Mr Hepburn was like a rollercoaster. Mr Hepburn was generally pleasant but became irate on occasions. The claimant felt inadequate when Mr Hepburn questioned robustly the need for some of the repairs that the claimant recommended to keep vehicles roadworthy.[51]Mr Hepburn told the claimant to back his bags and leave when they had words about the claimant reporting what he considered to be a serious offence involving a trailer losing a wheel hub assembly to Miss Hepburn. Mr Hepburn accused the claimant of harassing his daughter and blowing the incident out of proportion as no one had been hurt or died. The claimant considered that the respondent had been lucky. The claimant told Mrs Hepburn that he had been dismissed. She told the claimant that he had not been dismissed. She would speak to Mr Hepburn. The claimant still had a job.[52]Around 23 August 2019 the claimant was preparing a truck due for its MOT the following day. The claimant considered that he had not been given the truck in sufficient time to allow him to do what was needed. He worked on to try and finish the repairs but still had a light to fix. He intended to complete the work the next morning. The claimant was unwell that night. The following day Mrs Ferguson sent a text message to Mrs Hepburn explaining that the claimant was unwell and was not coming in. The respondent did not raise the matter with the claimant at the time. September 2019 to 15 December 2019[53]The claimant’s employment transferred to the respondent from 20 September 2019. The respondent issued the claimant with new terms and conditions of employment which were broadly similar to his original terms and conditions. His hours of were stated as 8am to 5pm Monday to Friday and five hours on a Saturday.[54]Around September 2019 the claimant’s elderly dogs were put down. The claimant was upset and was unable to sleep. He came to work at around 3am. Mr Hepburn and Mrs Hepburn were aware that the claimant was working in the shed in the early hours of the morning. They did not make any inquiries until later in the day.[55]Mr Hepburn and Mrs Hepburn noticed a change in the claimant’s mood and demeanour. Mrs Hepburn asked casually if the claimant was okay. Mr Hepburn was indifferent considering that everyone had their problems. The respondent made no attempt to understand the claimant’s difficulties or discuss how they could be addressed.[56]Around 17 October 2019 when the claimant arrived at work Mr Hepburn was annoyed. He said that he had fallen because of the mess lying around in the shed. Mr Hepburn ordered the claimant to tidy up. The claimant felt that he had been chastised. He spent around five hours cleaning the shed. Later the claimant looked at the CCTV footage to see what had happened before he had arrived. The claimant could see Mr Hepburn in the shed smoking from around 6am. There was no sign on the CCTV footage of Mr Hepburn falling over.[57]The claimant was upset. He felt that Mr Hepburn had lied and made him feel useless. The claimant wrote a letter on 18 October 2019 giving two weeks’ notice of termination of employment. The claimant handed the letter to Mrs Hepburn. Mrs Hepburn knew that the claimant did not like the manner in which Mr Hepburn had spoken to him. They had a discussion about the claimant’s relationship with Mr Hepburn and how people can have different perspectives. Mrs Hepburn did not want the claimant to act on impulse. The respondent needed a mechanic. She suggested the claimant take time and speak to Mrs Ferguson. The following week the claimant indicated that he did not wish to resign. Mrs Hepburn agreed to the claimant retracting the resignation.[58]There was a break-in to the shed. Consequently, security was enhanced including a lock on the door which allowed access from the shed to the private area where the shower was located. The claimant was not provided with information about the combination lock.[59]Around November 2019 Mr Hepburn and Mrs Hepburn were on holiday. Miss Hepburn was left in charge of the business. The claimant raised with her concerns that he did not have any running hot water. Mr Hepburn was annoyed that the claimant had raised the issue with his daughter. 16 December 2019[60]On 16 December 2019 the claimant was working in the shed. He had prepared a trailer for MOT and was awaiting parts. In the meantime, he was using a grinding machine and wearing protective ear-defenders. Mr Stirling entered the shed. He told the claimant that he was to drive a vehicle (SJ06) later that day. There was a nail in a tyre, and it needed to be changed. Shortly afterwards Mr Hepburn came into the shed while the claimant was still using the grinder machine. Mr Hepburn shouted to the claimant in a curt and forceful manner to get his car out of the shed so that SJ06 could be brought inside and the tyre replaced. Mr Hepburn said that the claimant had known about the puncture for the last two weeks. The claimant did not accept was the case. He was upset at being reprimanded in that manner. He felt that he was being criticised unfairly regarding a defect about which he had not been informed. Mr Hepburn left the shed.[61]Shortly afterwards Mrs Hepburn came into the shed and saw the claimant tidying away tools. She asked what he was doing. The claimant explained that he was tidying up because he had been asked to deal with SJ06. Mrs Hepburn handed the claimant defect sheets. She said that SJ06 was need that night. Another vehicle (the Mercedes) was need following day. She asked what was wrong as the claimant did not look good. He explained that he was fed up being spoken to “like shite”. Mrs Hepburn reiterated that SJ06 was needed for later that night and left. The claimant repaired the tyre on SJ06. The claimant had already done the work on the Mercedes. The trailer that he had been working on was not going out.[62]The claimant was very upset. He felt he had been criticised and spoken to in an inappropriate aggressive manner in front of another colleague. His interaction with Mr Hepburn was festering. To avoid saying or doing something inappropriate he considered that the best way of dealing with this was to remove himself from the situation until he had calmed down. The claimant told Mr Stirling that the job was done and that he was heading away. The claimant left the site.[63]Mrs Hepburn telephoned and messaged the claimant. As he was driving, the claimant he did not immediately reply but then confirmed that he would be in touch later in the day.[64]That evening once the claimant had composed himself he sent an email to Mrs Hepburn as follows (the December Email): “Hi Heather, you and I have had words in the past on more than one occasion regarding Robert speaking to me like I am something on the end of his boot heel. Making wild accusations, saying things to me to suit his own agenda which are away [off] the mark. Saying one thing one day and contradicting it the next day by saying the complete opposite. I don’t know if I’m coming or going. Do you have any idea what that does to someone? Let alone someone with ADHD. How he wishes to speak to someone else is not my concern, but if you want me to give [an] answer that is fitting to a question or to something that I have been told and get the best out of me, asking me in an angry, arrogant, jump in feet first manner. Think it is safe to say that you ain’t going to get the best out of me. So as to why I left I hope that sort of explains it. Staying there after yet another temper tantrum by Robert and blaming me for it, I’m not someone’s emotional punchbag. No-one pulls the drivers up for not telling you things when they break something. Then it comes to last minute.com and who has to get it sorted?? Not a word said. I think I do a good job there, I try hard to do every job in-house [whether] it is welding, painting, electrics, electronics, plumbing, joinery, pneumatics, tiling. I [have a go] enthusiastic rise to the challenge attitude and that’s a lot to do with ADHD. It does suit me most of the time, better than most in the past due to the fact that I get to work by myself a lot. Yes I go off on one now and then but it’s normally at myself as I place high expectations of myself and falling short of it is a failure to me. I have for 18 months now worked in a cowshed with the wind blowing through it. Conditions are not the best to say the least and fall very short off the mark. There is no proper infrastructure for pneumatic air systems, electrics, lighting, hot water to mention a few. I know Rome was not built in a day but most of the things listed don’t cost thousands just a few hundred and a lot is already there just not set up. I feel like a mushroom kept in the dark and fed crap. No-one asks me what would be my thoughts in the workshop, where would it be best to put that’s not in the way. I like to think I would know a wee bit about the setup of something like that as I have spent [my] entire working life in them all different ones. Even setting them up in Afghanistan from the ground up. I am no good as a talker but with time I think I can get things put over better when I write them down. What happens next?”[65]Mrs Hepburn spoke to Mr Hepburn about receiving the December Email. He did not read it. Mr Hepburn said that he was not barking at the claimant on that particular occasion. He felt that it was difficult to know what mood the claimant would be in and it was becoming harder and harder to work with him. Mrs Hepburn said that she needed to go through a process.[66]Mrs Hepburn emailed the claimant on 16 December 2019 advising him that the most appropriate way forward would be to have a “formal discussion” on 18 December 2019 and that “the meeting can be recorded so that both parties have a record”. She also said that the claimant was not expected in work on 17 December 2019 but would be paid. He was not “at that point” to be paid for a full day on 16 December 2019 as he left without notice to anyone on site. The claimant replied asking for if the meeting was to discuss the points raised or was it disciplinary. 17 December 2019[67]Mrs Hepburn replied that she considered that the claimant was “raising a grievance”. That discussion would be the starting point. Any other action would be considered following that. The claimant replied that he had not said anything which indicated a grievance. He felt that explaining by email was easier so that he could put down the words correctly as when he tried to talk it could come out wrongly. He asked for matters to be discussed informally. 18 December 2019 The December Meeting[68]The claimant met with Mrs Hepburn on 18 December 2019. He asked that the meeting not be recorded. Mrs Hepburn insisted that the meeting was recorded as it would save her having to take notes.[69]Mrs Hepburn said that she would work through the December Email. She expressed concern that the claimant had left work without saying to anyone that he was doing so. She asked what had happened. The claimant expressed concern that despite Mr Hepburn previously saying that unless he hears something himself, he is not interested, Mr Hepburn had listened to what Mr Stirling had said and then spoke to the claimant in what the claimant described as a “curt, abrupt, aggressive manner” saying that the claimant had known about the puncture for two weeks. Mrs Hepburn commented that she had spoken to Mr Hepburn. He said that he was not barking at the claimant on that particular occasion and Mr Stirling agreed. While the claimant had fixed the tyre there was still work in the book that needed to be done. Mrs Hepburn said that if something is wrong and needs to happen then people will “get frustrated and they probably saying things in a manner that might be perceived in a certain ways”.[70]The claimant explained that he had completed all the work that needed to be done. He told Mr Stirling that he was leaving. The claimant also said that he did not speak to Mr Hepburn and Mrs Hepburn as he did not want to have a face-to-face meeting at that time “because I have my problems and I’ve got to prepare myself”. The claimant explained how matters festered and that he did not wish to speak to them or return their calls until he was able to focus properly and think about what he was going to say.[71]Mrs Hepburn mentioned the claimant leaving on 23 August 2019 without giving an update on a vehicle scheduled for MOT. She commented, “Just a kind of concern and I know what you’re telling me it’s an awful lot to do with your mindset in terms of how you are feeling and whether it’s down to your ADHD, how you need to process things.” The claimant explained that on that occasion he had worked on but as Mrs Hepburn did not want him to work overtime, he left expecting to return the following day. He did not know that he would be sick overnight.[72]There was discussion about the working conditions mentioned in the December Email that Mrs Hepburn said sounded like a grievance. As the claimant had not previously raised with her that he was working in substandard conditions Mrs Hepburn asked him to elaborate. The claimant raised concerns about there being no hot running water; using the sink in the toilet to wash dishes, inadequate lighting and unsafe electrics (insufficient number of sockets, broken extensions and plugs), inadequate heating for the size of the workshop and toxic diesel fumes from the heaters. Mrs Hepburn commented that the shed had been inspected by DVLA. The claimant said that DVLA was not looking at the shed from an employee perspective. The claimant suggested fixing the holes in the roof and installing a hot water bowser. He offered to help use some of the material that was lying about, help with cladding and put-up lights. Mrs Hepburn said that they were running a business and keeping things going from a business perspective. Mrs Hepburn considered that it was unfair of the claimant raising issues about his working conditions as he had not raised these issues with her in the past.[73]The claimant also expressed concerns at the way in which instructions were communicated to him and that he required to confirm which of the conflicting instructions he was to follow. Mrs Hepburn said that they had to triage and prioritise what needed to be done first. The claimant said that he asked for clarification that certain jobs were to be put on the back burner.[74]The claimant asked for comments about his strong and weak points. Mrs Hepburn said that on a personal level there were things that were difficult to deal with at times. She said, “I do not know if sometimes it is to do with your meds, I do not know if it’s something to do with home life as sometimes it’s very difficult to know where you are in terms of focusing on the job in hand because you’ve got other distractions that seem to affect you or whether it’s just you’re unhappy at some things like the roof is leaking or something like that that is taking your mind off it because there are times when you are really hard to read and obviously I don’t get a great deal of conversation about it because it is not what you like to do.”[75]Mrs Hepburn said that Mr Hepburn also commented at times about the claimant’s mood and how he comes across. She was concerned about the claimant’s solution in terms of the impact that “it” has on the business and how the claimant deals with situations by taking himself out of it. This was a concern to her. The claimant explained about his condition.[76]The December Meeting concluded by the claimant asking what was to happen. Mrs Hepburn said that she would have a think about what they had been discussing and see where they went from here. She said that they would need to put things in place if there was going to be an improvement because she did not want to go through the same cycle all the time. The December Meeting concluded at about 2pm. Mrs Hepburn said that she would be in touch in the afternoon.[77]After the December Meeting Mrs Hepburn spoke to Mr Hepburn. He listened to part of the recording. Mr Hepburn said that he did not feel easy around the claimant and did not want to work with him. They decided that the claimant’s employment was to be terminated.[78]Mrs Hepburn telephoned the claimant. As he was driving home, Mrs Hepburn said that she would call back. The December Telephone Call[79]When the claimant arrived home, he told Mrs Ferguson that Mrs Hepburn was going to telephone which he did not anticipate being good news. When Mrs Hepburn telephoned the claimant and Mrs Ferguson listened on loudspeaker.[80]After pleasantries, Mrs Hepburn said that she was letting the claimant go. The claimant asked why. Mrs Hepburn said that it was what they had spoken about today. The claimant said that they had talked about a lot. Mrs Hepburn mentioned poor communication and the claimant’s issues. The claimant said, “ADHD?” Mrs Hepburn said yes. The claimant asked for this to be confirmed in writing which Mrs Hepburn said she would do. Post dismissal[81]On 27 December 2019 Mrs Hepburn sent an email to the claimant regarding his final pay (the Reasons Email). The Reasons Email included the following paragraph, “I stated on Wednesday 18/12 when I called you after our meeting the reason for giving you notice. I took the view that the skills you bring to the job and the way of working at our business and your feelings of the environment here. Based on these factors I didn’t think you were suitable for the role to continue.”[82]The claimant requested an appeal against the decision in his email sent on 30 December 2019 in which the claimant stated, “You did state that it was down to poor communication due to the reason we had discussed earlier that day which was my issues namely ADHD.”[83]At the date termination of employment, the claimant was 47 years of age. He had been continuously employed for one year. His gross basic salary was £750 per week which equated to a net basic wage of £550 per week. The respondent operates a pension scheme.[84]The claimant felt that he had given his heart and soul to the job. He was devasted at the loss of employment. He felt a loss of confidence. The claimant tried to find new employment. The claimant mitigated his loss until he found new employment around 16 March 2020. The claimant worked two and a half days in his new employment. He did not collect his wages and felt demoralised.[85]Since the termination of his employment the claimant’s mental health has deteriorated. Around 12 March 2020 the claimant had a suicidal attempt following which he consulted his General Practitioner expressing that he did not regret the attempt just the way in which he had tried because he had been unsuccessful. The claimant said that he was very distressed because he had been suspended and removed from his job and would not ever be able to work again. Mrs Ferguson was supportive but was concerned that she could not hold him from self-harm. The claimant made further suicide attempts on 23 and 27 May 2020. The claimant had a further episode and overdose in September 2020.[86]Throughout this period the claimant was unable to work as he was not in a stable place. The claimant was in receipt of Universal Credit from 5 February 2020.[87]Around June 2021 the claimant started working for a charity as a Support Worker. From October 2021 he has been employed by St Andrews Hospice. Observations on witnesses and conflict of evidence[88]The Tribunal considered that the claimant gave his evidence in a candid and dignified manner. For years he has had significant mental health conditions. The Tribunal’s impression was that since the diagnosis of ADHD the claimant’s understanding why he behaves in the way he does has improved. He takes medication and he has found coping mechanisms.[89]The Tribunal considered that he gave his evidence honestly. The Tribunal appreciated that the claimant’s recollection of events was from his perspective. While Mr Cunningham submitted that the claimant had deliberately misled the Tribunal about the accusation that Mrs Hepburn deliberately signed Mr Mullen’s name on a defect sheet that was not the view shared by the Tribunal. Mrs Hepburn’s position was that she wrote the defect sheet, but Mr Mullen signed it. The respondent produced an undated text message exchange between the claimant and Mr Mullen in which Mr Mullen wrote that Mrs Hepburn wrote on the defect sheet and he signed it because his writing is terrible. Notwithstanding receipt of that reply the claimant said in cross examination that he still believed Mrs Hepburn signed the defect sheet. The defect sheet was not produced. Mr Mullen, who continues to be engaged by the respondent did not give evidence. In his evidence in chief the claimant explained that a consequence of his disability was that he had negative thoughts and feelings leading to ongoing distorted beliefs about himself and others. For example, that no one can be trusted. The Tribunal considered that claimant believed that Mrs Hepburn completed all of the defect sheet and was not trying to mislead the Tribunal.[90]The Tribunal was mindful that Mrs Ferguson was understandably sympathetic to the claimant’s position. The Tribunal however thought that she gave her evidence in a straightforward and understated manner and did not seek to comment on matters that were out with her knowledge. The Tribunal felt that Mrs Ferguson did not underestimate the challenges involved in the claimant carrying out day-to-day activities including following instructions and social skills. It was evident that she provided significant support at home and worked with the claimant in finding strategies to ensure that he was able to focus on working. The Tribunal also felt it was significant that Mrs Ferguson had known the claimant since 2009 and had lived with him when he received his diagnosis of PTSD and ADHD and subsequent treatments. The Tribunal therefore found her evidence about despite all the challenges that the claimant had faced she had never seen him being like he was after his dismissal, persuasive.[91]One area where the Tribunal did not find Mrs Ferguson’s evidence convincing was in relation to the extract from the notebook what she said she made following the December Telephone Call. Mrs Ferguson said that she made the note on 18 December 2019 but under cross examination she said that she was shocked that the claimant got paid off because of his disability. She said she added the words “which never happened”. She could not recall when but probably when the letter came in.[92]The Tribunal had no doubt that Mrs Ferguson heard the December Telephone Call. Given her practice of making notes and lists the Tribunal thought that it was highly likely that around that time she made a note of the December Telephone Call. However, considering what was narrated in the extract from the notebook the Tribunal felt it more likely than not that that note was made on or after 27 December 2019 when Mrs Ferguson knew that the explanation given in the Reasons Email did not accord with Mrs Ferguson’s recollection of what was said during the December Telephone Call. The Tribunal accepted that at that point there would have been no reason for Mrs Ferguson to have mentioned making the note to the claimant. She made the note because that is what she does, and she did not attach particular significance to doing so. It seemed plausible to the Tribunal particularly in view of the other personal matters that Mrs Ferguson was having to dealing with that the note only came to light during final preparations for the final hearing. The Tribunal considered that there was no reason for Mrs Ferguson to have produced the note at that stage unless she already had it.[93]The Tribunal considered that while giving evidence Mrs Hepburn was often evasive and reluctant to make concessions which made her evidence at times unconvincing. The Tribunal was aware that as Mrs Hepburn was instructing Mr Cunningham, she viewed remotely the Tribunal hearing room while the claimant was giving evidence. The Tribunal’s impression was that there was information which Mrs Hepburn considered important and was intent on saying regardless of what she was asked.[94]The Tribunal found some of Mr Hepburn’s evidence to be unconvincing. His memory also appeared to be good when it suited him but on other occasions, he was vague and could not remember details or dates.[95]Mr Stirling gave his evidence honestly although his recollection of events also appeared to fade especially if it involved any adverse comment in relation to the respondent. The Tribunal was mindful that while not employed by the respondent he was reliant upon the respondent for a significant amount of work. Mr Stirling also has an on-working relationship with Mr Hepburn. Mr Stirling said that he was told about the Tribunal proceedings and was asked to give a statement. He said that he provided a hand-written statement to Mrs Hepburn which he said she typed out. The handwritten statement was not produced. While the document typed by Mrs Hepburn was produced and Mr Stirling confirmed that it was his signature on the document the Tribunal was surprised that he did not remember some of the detail that it contained. For example, Mr Hepburn asking the claimant to remove his car out of the workshop so that vehicle SJ06 could be brought in. The Tribunal considered that the typewritten statement was not a contemporaneous document and put little weight by it.[96]The Tribunal considered that all the witnesses were imprecise when describing when events took place. Accordingly, when making its findings the Tribunal endeavoured to narrate the events in the order that it understood they took place by reference if possible to the dates mentioned in the productions.[97]The Tribunal had difficulty making findings about the claimant’s new employment in March 2020. The claimant was vague about the exact date he started. He thought it was the week before the first lockdown. In crossexamination it was suggest this would be the week commencing 16 March 2020. The Tribunal noted that the psychiatric referral was dated 12 March 2020. That referral states that the claimant said that he would never work again. The Tribunal considered that it was strange to say that if the was starting a new job the following week. Ms Stein tried unsuccessfully to clarify this on re-examination.[98]The Tribunal also had some difficulty understanding the claimant’s pension. The terms and conditions refer to Moovit Limited and the respondent operating a pension scheme. The claimant was referred to some payslips but only in relation to showing overtime payments from time to time. While the payslips make reference to “Pension” this appears to be a deduction for employee contribution. There was no reference on the payslips to any contributions to pension by the employer. The Tribunal noted that there was reference in the schedule of loss to a four percent employer contribution to pension. There was no evidence to explain this figure which appeared to contradict a figure of three percent contribution in a document that was included in the productions to which the Tribunal had not been referred. The Tribunal therefore made no finding about level of employer contribution to the claimant’s pension.[99]In relation to conflicting evidence the Tribunal identified the following points which it considered material to the issues that it required to determine. Knowledge of the claimant’s conditions[100]The claimant’s position was that he disclosed his conditions to the respondent at the interview (May 2018) and openly mentioned his conditions and medication while at work. Mrs Ferguson said that she encouraged the claimant to be open about his conditions. She understood that he had mentioned them at the interview.[101]Mrs Hepburn denied that the claimant mentioned ADHD and PTSD at the interview as did Mr Hepburn who conceded that he only attended part-way through. Mrs Hepburn also denied that she knew the claimant was on medication. Mrs Hepburn said that had the claimant disclosed that he had PTSD and ADHD at his interview in 2018 she would have been obliged to advise the insurers. She said that the further and better particulars provided in June 2021, which state that the respondent recollects at interview the claimant suggested that he may have had PTSD or ADHD, was reference to the December Meeting. The claimant referred to having ADHD in the December Email. Mrs Hepburn said that she did not know where the claimant was on the spectrum. Before the December Meeting, she did not make any enquires about ADHD. Mrs Hepburn that she was unaware of the claimant’s medication until he raised it at the December Meeting.[102]The Tribunal considered that the claimant was open about working in Afghanistan and mentioned it in his CV. It seemed very likely to be a talking point at the interview and the claimant was in the Tribunal’s view likely to have mentioned that as a result he had PTSD. The Tribunal also considered that the claimant’s diagnosis of ADHD in 2017 was a turning point for him. For the first time in his life, he was able to understand that he had a mental impairment that was a recognised condition and that there were treatments which could help him live with it. The Tribunal felt that the claimant had a good insight to his conditions and did not appear to be embarrassed by them. To the contrary the Tribunal felt that it helped him understand and explain to others why he often felt and behaved in the way that he did. He knew the importance that medication played in keeping his conditions under control.[103]The Tribunal also felt that Mrs Ferguson appreciated the support that the claimant needed, particularly in the workplace. It therefore seemed entirely plausible that she would encourage the claimant to be candid with any prospective employer.[104]Against this background it seemed implausible that the claimant would not have mentioned at interview being diagnosed with PTSD and ADHD particularly as he was being recommended by a mutual acquaintance who was aware of his conditions. The Tribunal also felt that it was plausible that at interview he would seek to provide reassurance that his conditions were under control as he took medication.[105]By contrast the Tribunal felt that Mrs Hepburn’s position was unconvincing. Her evidence that the further and better particulars provided in June 2021, which state that the respondent recollects at interview the claimant suggested that he may have had PTSD or ADHD was reference to the December Meeting was unbelievable. Until that point neither in her in evidence nor in the contemporaneous documentation did Mrs Hepburn refer to the December Meeting as an interview. Also, in the additional information provided in August 2020 the respondent states that the claimant did suggest at the start of his employment that he had ADHD and PTSD and that both were under control.[106]There was no suggestion that there were any restrictions on the claimant’s driving licence. Mrs Hepburn did not elaborate on the insurers to which she was referring or why there would be such an obligation to inform them of the claimant’s conditions. The Tribunal considered that had such obligations existed it was surprising that there was no request for employees to complete a medical questionnaire when their employment started. It was also incredible that this was not mentioned at the December Meeting if as Mrs Hepburn said the December Email was the first time the claimant mentioned ADHD and PTSD.[107]The Tribunal noted that during the December Meeting while the claimant referred to his problems and how comments can fester and eat away at him, it was Mrs Hepburn who first mentions ADHD. The Tribunal considered that had the December Email been the first occasion that the claimant had told Mrs Hepburn about his condition there would have been discussion about why this had not been raised previously raised it with her. As this did not happen the Tribunal felt this also pointed to Mrs Hepburn already knowing that the claimant had ADHD.[108]The Tribunal considered that Mrs Hepburn’s evidence that she was unaware of the claimant’s medication until he raised this at the December Meeting was unbelievable. From the transcript of the recording of the December Meeting Mrs Hepburn was the one who raised the claimant being on medication. The Tribunal considered that it was highly likely that Mrs Hepburn knew that the claimant was on medication for his conditions as the claimant had said that they were under control.[109]The Tribunal preferred the claimant’s evidence and found that the claimant had mentioned at the interview in May 2018 that he had PTSD and ADHD and they were medically controlled.[110]The claimant said that he attended regular counselling and hospital appointments for his conditions. Mr Hepburn and Mrs Hepburn did not dispute that they knew that the claimant was going for regular counselling. They said that they assumed that this was in relation to marriage counselling.[111]The Tribunal considered that while the claimant may have mentioned stresses in his marriage, he did not say that he was attending marriage guidance counselling. Given the regular daytime counselling sessions and hospital appointments attended by the claimant during his employment the Tribunal was unconvinced that Mr Hepburn and Mrs Hepburn believed that the counselling sessions were for marriage guidance. The Tribunal therefore found that the respondent knew that the claimant was attending counselling sessions for his medical conditions. System of work[112]The claimant’s evidence was that he used his own notebook to record work undertaken by him which he would later transfer onto inspection sheets that he would sign. He said that he would also receive driver defect sheets, but they were often passed to him at the last minute when vehicles were scheduled to be driven imminently. The claimant received verbal instructions from Mr Hepburn. The claimant considered that there were conflicting instructions about what work was to be given priority. Mrs Hepburn gave evidence about preparing spreadsheets; maintenance sheets, daily work sheets and driver defect sheets. None of these was produced. Mrs Hepburn also referred to a “triage system” for other work. Mr Hepburn corroborated this evidence. While the claimant’s instructions initially came from Mr Hepburn and Mrs Hepburn, it was later confirmed to the claimant that Mr Hepburn would allocate his work. The Tribunal’s impression was that Mr Hepburn did not prepare, read or complete any documentation to which he referred. His focus was getting vehicles on the road and to locations. While the Tribunal did not doubt that the claimant was provided with paperwork it was unclear how that work was to be prioritised on a daily basis particularly as there were competing priorities (not all of which the claimant would be aware); Mr Hepburn was not based permanently on site; and the drivers did not always complete defect sheets when they were expected to so do. Working conditions[113]The claimant said that working conditions fell short off the mark. There was no proper infrastructure for the pneumatic air system, inadequate lighting, no running hot water, the shed roof was leaking and there were diesel fumes. The evidence from Mr Hepburn and Mrs Hepburn did not in the Tribunal’s view materially conflict with that of the claimant. The issue was more that DVLA had not taken issue with the conditions; there were financial restrictions on the respondent’s investment in the workshop; and that until the December Meeting these issues had not been previously raised with Mrs Hepburn. It was conceded that the lack of hot running water was raised with Miss Hepburn although Mr Hepburn appeared more concerned about the manner in which he said the claimant raised the issue with Miss Hepburn than there was no running hot water in the shed or toilet. Mr Hepburn’s style of communication[114]The claimant said that Mr Hepburn would on occasion shout at him and tell him off. He described Mr Hepburn on 16 December 2019 as “like a raging bull”. Mr Hepburn said that this was, “Not me at all”. Mr Hepburn also denied shouting at the claimant and telling him off. Mr Stirling said that in the exchange between the claimant and Mr Hepburn on 16 December 2019 there was “nothing untoward”. Mr Stirling said that he, “Got on okay” with Mr Hepburn and that they, “Never had a run in.”[115]The Tribunal noted that in the transcript of the December Meeting Mrs Hepburn said that, “Robert said that he was not barking at you on that particular occasion”. She also said that if something is wrong and it needs to happen people will get frustrated and they “will probably say things in a manner that might be perceived in certain ways but I’m told from investigations I have made that day that that is not the way it was said.”[116]In the Tribunal’s view Mr Hepburn considered that the farmyard and shed were part of his home where he could behave as he liked. For example, there was an express prohibition against smoking (except in designated areas) with disciplinary consequences in the claimant’s terms and conditions. Mr Hepburn smoked in the farmyard, shed and portacabin. While Mrs Hepburn dealt with administration Mr Hepburn was in charge of the “boys” (Mr Stirling and Mr Mullen) and the claimant. Mr Hepburn acknowledged that the claimant was a trained mechanic but that he (Mr Hepburn) had picked up knowledge working with his father. The Tribunal’s impression was that Mr Hepburn was amiable provided that his instructions were followed without question. The Tribunal considered that Mr Hepburn did not respond well to his decisions or authority being undermined. The Tribunal felt that the claimant was more likely to challenge Mr Hepburn than Mr Stirling and Mr Mullen. The claimant did not always agree with Mr Hepburn about the necessity of repairs; he raised issues with Miss Hepburn to which Mr Hepburn took exception and Mr Hepburn had previously told the claimant to leave. The Tribunal considered that Mr Hepburn probably found the claimant to be frustrating and was more likely than not to have at times spoken to the claimant in a robust manner.[117]In relation to the conversation on 16 December 2019 the Tribunal considered that Mr Hepburn believed that the claimant had delayed fixing the puncture on SJ06 which was needed that night. In the Tribunal’s view it was more likely than not that Mr Hepburn’s instruction to the claimant to move his car from the shed was a command rather than a request. His voice was raised as he did not wait until the claimant stopped using the grinding machine. The Tribunal did not believe that Mr Hepburn was interested in any explanation from the claimant and that the tone of the instruction to repair the puncture was uncompromising and he then left the shed. December Telephone Call[118]The evidence of the claimant and Mrs Ferguson was that during the December Telephone Call Mrs Hepburn said that she did not consider that the claimant was a suitable candidate for the business going forward and would need to let the claimant go. The claimant asked for the reason for this. Mrs Hepburn said that it was because of what they were speaking about that day. The claimant said that that they had spoken about a lot. Mrs Hepburn said that it was because of his issues. The claimant said my ADHD. Mrs Hepburn said yes. Mrs Hepburn’s evidence was that she said that she had gone through all the points discussed and that it would not be advantageous to the respondent to keep the claimant on. When the claimant asked for the reasons why she said that it was his poor communication and that fact that he felt it was difficult to work with Mr Hepburn. Mrs Hepburn accepted in examination in chief that she said that she was letting him go; that it was about what they spoke about today; his issues. She could not comment about the claimant saying, “ADHD” as she did not have any knowledge about it. She could not recall if the claimant said ADHD. The claimant asked her to put it in writing.[119]Mrs Hepburn provided reasons in the Reasons Email: she took a view on the skills that the claimant brought to the job, their way of working and the claimant’s feelings about the environment. Based on these factors she did not think he was suitable for the role to continue. In the claimant’s email appealing the decision he states that Mrs Hepburn did say that “it was down to poor communication due to the reasons we had discussed earlier that day which was issues namely ADHD”.[120]The Tribunal’s impression was that Mrs Hepburn was disconcerted during the December Telephone Call. She had not prepared a script. She had already tried to speak to the claimant and had agreed to call him when he was home. Mrs Hepburn told the claimant that she was “letting him go” rather than saying he was being dismissed or his employment was being terminated. She provided an explanation for the decision only when pressed by the claimant. It seemed to the Tribunal that the December Telephone Call came to an abrupt end as there was no discussion about notice pay, outstanding wages or collection of tools. These issues were addressed in text messages over the following days.[121]The Tribunal considered that having had a lengthy meeting with the claimant and then discussing the situation with Mr Hepburn, it was likely that Mrs Hepburn wanted the telephone conversation to be brief. The Tribunal thought it likely that Mrs Hepburn mentioned poor communication as this was the nub of the issue between the claimant and Mr Hepburn. In explaining why, he had acted in the way that he did, the claimant had discussed his issues at the December Meeting. The Tribunal therefore believed that Mrs Hepburn would mention the claimant’s issues but not specifically refer to ADHD. The Tribunal considered that it was very likely that the claimant would make specific reference to it.[122]The Tribunal found that during the December Telephone Call Mrs Hepburn said that she was letting the claimant go. The claimant asked why. Mrs Hepburn said that it was what they had spoken about today. The claimant said that they had talked about a lot. Mrs Hepburn mentioned poor communication and the claimant’s issues. The claimant said, “ADHD?” Mrs Hepburn said yes. The claimant asked for this to be confirmed in writing which Mrs Hepburn said she would do. Submissions[123]Ms Stein and Mr Cunningham helpfully provided the Tribunal with written copies of the submission they gave orally.[124]They agreed that the law set out in this judgment is relevant to the issues to be determined. Mr Cunningham also referred the Tribunal to the following authorities: Kilraine v London Borough of Wandsworth [2018] ICR 1850; Derbyshire v St Helens Metropolitan Borough Council [2007] ICR 841; Gallop v Newport City Council [2014] IRLR 211; Elloy de Freitas v Permanent Secretary of Agriculture and Fisheries, Lands and Housing [1999] 1 AC 69; Environment Agency v Rowan [2008] ICR 218; General Dynamics Technology Limited v Carranza [2015] ICR 169; Tchoula v ICS Limited (UK) Limited [2000] ICR 1191; BAE Systems (Operations)Limited v Konczak [2018] ICR 1; Colt Technical Services v Brown UKEAT00233/17.[125]They agreed that the credibility and reliability of the witnesses was a matter for the Tribunal. The Tribunal did have regard to the submissions that were made on the evidence that was heard.[126]Given the different formats of the submissions the Tribunal found it easier to record it consideration of the submissions as part of the deliberations. Deliberations and Decision[127]The Tribunal referred to the list of issues set out above. The claimant has less than two years’ service. Any unfair dismissal claim can only succeed if the dismissal was automatically unfair. While the claimant brought claims under sections 100(1)(c) and section 103A of the ERA the Tribunal was surprised that having heard the evidence and agreeing that they were mutually exclusive claims Ms Stein did not submit which reason or principal reason the claimant said was why he was dismissed. This was perhaps due to the claimant’s evidence being unclear on the issue and neither proposition being put to Mr Hepburn or Mrs Hepburn in crossexamination. Was the reason or principal reason for dismissal that the claimant raised a health and safety concern with the respondent?[128]The Tribunal asked whether the reason or principal reason for the dismissal was that the claimant raised a health and safety with the respondent. The Tribunal considered whether the claimant raising health and safety concerns was the reason that operated in the minds of Mr Hepburn and Mrs Hepburn at the time the claimant was dismissed.[129]For most of his employment while the claimant considered that his working conditions were “off the mark” he sought to suggest and help make improvements. Before the December Meeting the claimant had not raised any health and safety issues with Mrs Hepburn. He had mentioned not having running hot water with Miss Hepburn. Mr Hepburn was aware of this, but his concern appeared to be not in relation to the issue but the manner in which the claimant raised it with Miss Hepburn. Mrs Hepburn has responsibility for health and safety. The information provided by the claimant appeared to be of little or no concern to Mrs Hepburn despite this being the first time that the claimant had discussed his concerns with her in detail. The limited extent that these concerns were conveyed by Mrs Hepburn to Mr Hepburn reinforced to the Tribunal that they were not the reason or main reason for the claimant’s dismissal.[130]While the Tribunal considered that raising health and safety concerns did not assist the claimant the Tribunal did not consider that doing so was the reason or principal reason for his dismissal. Accordingly, the Tribunal dismissed the claim under section 100(1)(c) of the ERA. Was the reason or principal reason for dismissal that the claimant made a protected disclosure?[131]The Tribunal first asked whether the claimant made a protected disclosure. The Tribunal referred to the December Email and asked whether it disclosed information that the health or safety of any individual had been or is likely to be endangered. If so, was it made in the public interest and was that belief reasonable?[132]The Tribunal agreed with Mr Cunningham’s submission that the information in the December Email was general and there was no express or implied reference to the health or safety of any individual being endangered.[133]The Tribunal did however consider that the information disclosed at the December Meeting did disclose that the health and safety of individuals were being endangered. Mr Cunningham submitted that this disclosure was not in the public interest and was motivated by personal animosity. The Tribunal did not agree. The claimant was working in the shed since July 2018. There was no running hot water to wash dishes, cutlery or hands. The shed was not watertight as a roof panel was missing. The claimant was not the only worker that used the shed and toilet. The Tribunal considered that his belief about the health and safety concerns were reasonable and genuinely held. While from social media messages the relationship between the parties deteriorated this was after the termination of the claimant’s employment. At the December Meeting the claimant acknowledged that the shed was a workshop, it would take time to fit out and he was willing to assist in that process. The Tribunal considered that he raised the issues with a genuine concern about his own and the health of safety of others who worked there with a view to helping to improve the situation for everyone.[134]While the Tribunal considered that the claimant made a protected disclosure at the December Meeting for the reasons previously set out it did not consider that making the protected disclosure was the reason or principal reason for his dismissal. The Tribunal’s impression was that neither Mr Hepburn or Mrs Hepburn considered that there were any health and safety issues. Mrs Hepburn appeared satisfied that having been inspected by DVLC there was no problem. Neither of them appeared perturbed by there being no running hot water and water leaking through the shed roof. To the contrary Mrs Hepburn seemed to be taken aback that the claimant should raise these issues when he could boil a kettle and the missing roof panel was not directly above the place where the claimant worked. Was the claimant subject to any other detriment on the ground that he made a protected disclosure?[135]The Tribunal then asked if the claimant was subject to any other detriment on the ground that he made a protected disclosure? Given that the protected disclosure was made orally at the December Meeting, the claimant was dismissed later that day and that the reason or principal reason was not having made the protected disclosure, the Tribunal considered that the claimant was not subject to any other detriment on that ground.[136]Having reached these conclusions, the Tribunal dismissed the claims under sections 48 and 103A of the ERA. Did the respondent not know or could not reasonably be expected to know that the claimant was disabled?[137]The Tribunal then turned to consider if the respondent did not know or could not reasonably be expected to know of the claimant’s disability. Mr Cunningham submitted that the respondent did not have knowledge of the claimant’s disability at the relevant times. He reminded the Tribunal that the decision to dismiss was a joint one. Mr Hepburn was not present at the December Meeting but in any event, it was not conceded that Mrs Hepburn had the requisite knowledge of disability either. Ms Stein submitted that the respondent had actual knowledge since the interview in May 2018. Alternatively, the respondent had knowledge from the December Email and the December Meeting. She also submitted that the respondent could reasonably be expected to know from September 2019 when they knew the claimant suffered from ADHD and noticed a change in his behaviour but did not make reasonable enquiries.[138]The Tribunal found that at the interview in May 2018 the claimant disclosed that he had ADHD and PTSD which was under control. The Tribunal did not consider that the claimant said at the interview that he was disabled person.[139]While the respondent does not have a duty to make enquiries this does not mean that it can turn a blind eye to the evidence of disability. The respondent knew that the claimant had worked in Afghanistan in 2009 and had PTSD. He also had ADHD. He said his conditions were “under control”. On the evidence of Mr Hepburn and Mrs Hepburn they did not consider the issue of disability even when the claimant’s behaviour changed in September 2019, they received the December Email and had the information provided at the December Meeting. The Tribunal felt that their attitude was blasé.[140]The Tribunal found it surprising given Mrs Hepburn’s comments about insurers that she did not explore this further especially given the number of times the claimant attended counselling and hospital appointments. Mrs Hepburn knew that there was a spectrum. She was also aware early in the employment relationship that the claimant wanted to complete work which resulted in him working overtime without prior approval and her having to intervene to ensure that he stopped work at his finishing time. He also had difficulty prioritising work especially if there were conflicting instructions. Mrs Hepburn was aware of this and the claimant was told that Mr Hepburn was in charge. The claimant preferred to work alone, was socially awkward to such an extent that by September 2019 Mr Hepburn was finding the claimant’s moods challenging. The claimant attended work at 3am. He tendered his resignation in October 2019 in response to comments made to him by Mr Hepburn which on reflection the claimant withdrew the resignation with Mrs Hepburn’s agreement. The claimant had raised concerns about running hot water with Miss Hepburn in a manner that Mr Hepburn did not like, and this had not been an issue previously raised by the claimant.[141]The Tribunal considered by September 2019 that the information that was already in the respondent’s possession should have alerted Mr Hepburn and Mrs Hepburn to the possibility that they were connected to a disability. It would have been reasonable for the respondent to have explored with the claimant the reasons for his behaviour and whether the difficulties were in consequence of something arising in consequence of a disability.[142]The Tribunal concluded that the respondent knew or ought to have known about the claimant’s disability by September 2019. The Tribunal considered that the December Email disclosed information about the claimant’s condition which was further clarified at the December Meeting. The fact that Mr Hepburn did not read the December Email or had partial details of the discussion at the December Meeting did not mean that he could not reasonably be expected to know about the disability. He chose not to read the December Email or listen to the recording of the December Meeting despite Mrs Hepburn insisting to the claimant that it was necessary so that she did not need to make notes. Did the respondent treat the claimant less favourably because of his[143]The Tribunal then asked whether the respondent treated the claimant less favourably because of his disability. The claimant relied on dismissal as the less favourable treatment.[144]The respondent dismissed the claimant. The Tribunal asked whether this was less favourable treatment. As there was no direct comparator this involved deciding if the claimant was treated worse than someone else would have been treated where there was no material difference between their circumstances and the claimant’s circumstances.[145]The Tribunal considered that a hypothetical comparator would be an experienced mechanic with less than two years’ service who did not have the claimant’s disability, had challenged Mr Hepburn, left the premises without permission and complained about Mr Hepburn’s treatment and the working conditions[146]The Tribunal approached this issue by focussing on why the respondent dismissed the claimant. The respondent knew since May 2018 that the claimant had PTSD and ADHD which was under control. The respondent did not know that the claimant was a disabled person. The respondent offered the claimant employment. The respondent considered that the claimant was an experienced and able mechanic. The respondent was aware and gave permission for the claimant to leave work to attend counselling and hospital appointments and make up time later. The respondent became aware of the need to manage the claimant’s working time and his repeated requests for clarity about instructions and work priority. The respondent knew that the claimant resigned in October 2019 in response to the way in which he was spoken to by Mr Hepburn. The respondent did not accept the resignation and allowed the claimant to withdraw it. Mr Hepburn did not like the way that the claimant spoke to Miss Hepburn while he and Mrs Hepburn were on leave. The claimant did not like the way Mr Hepburn spoke to him on 16 December 2019 and left work without permission. The claimant sent the December Email referring to ADHD, complaining about Mr Hepburn’s way of speaking to him and his working conditions. At the December Meeting the claimant elaborated on his concerns and the effect of his ADHD. Mr Hepburn and Mrs Hepburn decided that they could no longer put up with the claimant’s moods, leaving work without permission and not explaining what he had done.[147]The Tribunal considered that the respondent was content to employ the claimant and had no unease with the claimant having been diagnosed with ADHD or PTSD. The respondent had no significant issues with the claimant until around September 2019. The respondent was also agreeable to the claimant withdrawing his resignation in October 2019. The Tribunal felt that around October 2019 the claimant’s relationship with Mr Hepburn significantly deteriorated as the claimant challenged Mr Hepburn’s authority. Mr Hepburn was unhappy with the claimant raising issues with Miss Hepburn. The claimant left work without permission or providing a work update. He did not answer Mrs Hepburn’s telephone calls. During the December Telephone Call when terminating his employment Mrs Hepburn referred to poor communication and the claimant’s issues. It was the claimant who said ADHD. There was no mention of ADHD in the Reasons Email.[148]The Tribunal considered that the respondent was indifferent to the claimant’s disability. For 14 months the claimant was generally compliant. Mr Hepburn considered that the claimant was a good mechanic, and everyone has their traits. In the Tribunal view it was because the claimant raised issues about Mr Hepburn’s treatment, left work without permission complained about his conditions that a decision was taken to terminate his employment. The Tribunal considered that the hypothetical comparator would also have been dismissed and therefore concluded that claimant was not dismissed because of his disability. Did the respondent apply a provision, criteria or practice (PCP)?[149]The Tribunal then asked whether the respondent applied a provision, criteria or practice (PCP). The PCP relied upon by the claimant is the respondent’s communication style.[150]The respondent denies that this is a PCP. Mr Cunningham referred the Tribunal to the ECHR Code which states that the term PCP should be construed widely so as to include, for example formal and informal policies, rules, practices, arrangements, criterion, conditions, prerequisites, qualifications or provisions. The function of the PCP within section 20(3) of the EqA is to identify what it is about the employer’s operation which causes disadvantage to the employee with the disability. It is often something quite basic. Mr Cunningham said that the proposed PCP did not satisfy that test and that the claimant had not identified a relevant PCP.[151]The Tribunal agreed with Mr Cunningham’s submission that claim form did not state that the claimant had an inability to deal with work related communications and the disadvantage that might follow. However, the claim form did refer to the respondent’s communication style. The Tribunal considered the respondent’s operated a triage system. The claimant’s workflow was communicated to him by writing in the form of inspection, maintenance and driver defect sheets and short notice verbal instructions principally from Mr Hepburn. In the Tribunal’s view this was an arrangement and amounted to a PCP. Did the PCP place the claimant at a substantial disadvantage in comparison with people who are not disabled?[152]The Tribunal then asked whether this PCP placed the claimant at a substantial disadvantage in comparison with people who are not disabled? The claim form refers to the substantial disadvantage as the claimant being more likely to be alarmed by the aggressive communication style than someone who does not have his conditions.[153]The nature of the respondent’s business was that unexpected and urgent repairs needed to be done. Mr Hepburn would communicate instructions verbally in a robust manner. His instructions often resulted in other scheduled work of the claimant being postponed. The Tribunal considered that the PCP did place the claimant at a substantial disadvantage in comparison to people who are not disabled as he needs structure, routine and struggles with decision making and prioritisation. The claimant can be extremely impatient and have distorted thoughts. The claimant would be distressed that the workflow was being changed and worried about the consequences to scheduled maintenance. If the instructions were conveyed robustly the claimant was likely to believe that he had done something wrong and blame himself. Did the respondent know or could have reasonably be expected to know that the claimant was likely to be placed at a disadvantage?[154]As explained above the Tribunal concluded that the respondent knew or ought to have known about the claimant’s disability by September 2019. The Tribunal then asked did the respondent know or could it reasonably have been expected to know that the claimant was likely to be placed at a disadvantage and if so when?[155]The Tribunal considered that the respondent was aware on 18 October 2019 that the claimant had concerns about the way he was spoken by Mr Hepburn. Mrs Hepburn was aware of this as the claimant had tendered his resignation because of how he was spoken to by Mr Hepburn in October 2019. At the December Meeting Mrs Hepburn refers to Mr Hepburn not “barking at” the claimant on that particular occasion (16 December 2019). She also referred to “if something is wrong and needs to happen then people will say get frustrated and they probably saying things in a manner that might be perceived in a certain ways”.[156]In the Tribunal’s view from 18 October 2019 Mr Hepburn and Mrs Hepburn were aware that the claimant was troubled by the manner in which Mr Hepburn conveyed his instructions to the claimant to the extent that he resigned as he felt that it was inappropriate. If the respondent considered that Mr Hepburn’s communication style was acceptable, and it was the claimant’s perception that was wrong then the Tribunal felt that there should have been a discussion about that which would have resulted in the respondent understanding how the claimant’s disability can distort his thoughts. What steps could have been taken to avoid the disadvantage?[157]The Tribunal then asked what steps could have been taken to avoid the disadvantage? The claimant suggested that there should have been a variation to the communication style.[158]The respondent operated a triage system and used a number of paper documents as part of the communication system. The Tribunal appreciated that the nature of the respondent’s business resulted in last minute ad hoc instructions which were time critical and needed to be communicated verbally. The Tribunal considered that these instructions could have been communicated in a clear, courteous, non-judgmental manner. By doing so the claimant would not be alarmed by the tone in which Mr Hepburn sometimes conveyed instructions because of any frustration justly or otherwise that he might have. The Tribunal considered that there was no apparent cost involved in doing this. The Tribunal considered that the adjustment was reasonable and was not done. The Tribunal considered that the respondent had failed to comply with the duty to make reasonable adjustments and the claim under section 20 of the EqA succeeds. Was the claimant’s dismissal unfavourable treatment arising from his[159]The Tribunal then asked if the claimant’s dismissal was unfavourable treatment arising from his disability. The claimant asserts that as a result of his disability he has poor communication skills. The claimant asserts that he was dismissed because of his poor communication skills culminating in his dismissal.[160]The Tribunal had already discussed its findings about when the respondent ought reasonably to have known about the claimant’s disability in September 2019 and why the respondent dismissed him. The claimant has difficulty keeping quiet and often speaks out of turn uttering responses and interrupting others. He ruminates about things people say to him. He is impulsive. A coping mechanism is to remove himself from a situation until he is calmer. Mr Hepburn and Mrs Hepburn decided that they could no longer put up with the claimant’s moods, leaving work without permission and not explaining what he had done. The Tribunal considered that the claimant was dismissed because something arising in consequence of his disability. Was the treatment a proportionate means of achieving a legitimate aim?[161]The Tribunal then asked if the treatment was a proportionate means of achieving a legitimate aim? The respondent says that a legitimate aim is the requirement for the respondent’s employees to observe reasonable standards of communication in the workplace. The Tribunal considered that there was evidence of the need for vehicles being prepared for inspections on a regular basis; for routine maintenance of vehicles and for rectification of defects identified by drivers. As the claimant was the only mechanic it was important for information about the state of progress of a vehicle’s maintenance/repair and the claimant’s availability to be communicated to Mr Hepburn, who failing Mrs Hepburn. The Tribunal considered that was a legitimate aim.[162]The Tribunal then considered the discriminatory effect of the measure on the claimant. The claimant can be extremely impatient. He finds it difficult to keep quiet and speaks out of turn. Knowing this he will remove himself from a situation. The Tribunal accepted that the claimant leaving on 16 December 2019 without permission was incompatible with the respondent’s aim. The Tribunal considered that it was appropriate for Mrs Hepburn to have contacted the claimant by telephone on 16 December 2019 to ascertain his whereabouts. Mrs Hepburn advised that the claimant would not be paid for the time that he left work without permission. She did not require him to attend work on 17 December 2019.[163]The Tribunal asked whether the respondent could have used less discriminatory means to achieve the same objective. The Tribunal considered that the claimant was upset by the manner in which Mr Hepburn had spoken to him on 16 December 2019. Mrs Hepburn was aware of that when she spoke to the claimant shortly afterwards and handed him paperwork. It seemed to the Tribunal that had Mr Hepburn approached the matter in the same way as Mrs Hepburn: providing the claimant with the defect sheet relating to the punctured tyre and advising that SJ06 was needed for that evening the claimant would not have left the premises without permission or explanation about outstanding work.[164]The Tribunal also considered that until this incident there only one occasion where there was uncertainty about what work was still to be done when the claimant was absent through illness in August 2019. There was no evidence to suggest the respondent had raised any issue about this with the claimant at the time. Had the respondent done so an arrangement could have been put in place for the claimant to leave a written note of the state of repair for each vehicle on which he was working before he left work and what he was scheduled to do the following day. It seemed to the Tribunal that much of the information was already detailed in the claimant’s notebook to which the respondent could have been given access. The claimant could also have been warned that leaving the premises without permission from Mr Hepburn or Mrs Hepburn might have disciplinary as well as financial consequences for him.[165]The Tribunal concluded that the respondent could have achieved its legitimate aim by less discriminatory means and therefore concluded that there was a breach of section 15 of the EqA. Did the respondent engage in unwanted conduct related to a disability?[166]The Tribunal then turned to the consider whether the respondent engaged in unwanted conduct related to a disability. The Tribunal noted that there was a subjective and objective element to the test of whether the act constituted harassment and that the conduct in this case must relate to disability.[167]The Tribunal asked whether the respondent engaged in unwanted conduct. While the claimant referred to Mr Hepburn shouting at him when Mr Hepburn considered that vehicles were not roadworthy the Tribunal felt that this evidence lacked sufficient detail. The claimant also relied upon his conversation with Mr Hepburn on 16 December 2019. The Tribunal found that the conversation took place. The Tribunal considered that the conversation with Mr Hepburn on 16 December 2019 was unwanted conduct. The claimant was upset at the tone and Mr Hepburn making assumptions based on information from Mr Stirling about how long the claimant had been aware of the defect.[168]The Tribunal then turned to whether the unwanted conduct was related to a protected characteristic (disability). Ms Stein’s submissions referred to the claimant being verbally harassed but did not elaborated on why this was related to a protected characteristic. Mr Cunningham submitted that it was not.[169]The Tribunal evaluated the evidence in the round to consider whether Mr Hepburn’s tone and comments were related to a protected characteristic. The Tribunal referred to its findings. Mr Hepburn knew that the claimant had ADHD and PTSD but not that he had a disability. The claimant was using a grinding machine and ear defenders. Mr Hepburn shouted to the claimant in a curt and forceful manner to get his car out of the shed so that SJ06 could be brought inside and the tyre replaced. Mr Hepburn said that the claimant had known about the puncture for the last two weeks. The claimant was upset by Mr Hepburn’s manner which Mr Stirling said was not untoward. The claimant felt that he had been criticised and spoken to in an inappropriate aggressive manner in front of another colleague. The claimant mentioned to Mrs Hepburn the way in which he was spoken to by Mr Hepburn. While she repeated that the repair had to be done that day as SJ06 was needed. She did not suggest to the claimant that he was at fault in anyway.[170]Looking at the overall picture the Tribunal did not consider that the unwanted conduct related to disability. Accordingly, the Tribunal dismissed the claim under section 26 of the EqA. What are the claimant’s financial losses?[171]The Tribunal moved onto consider the question of remedy. The Tribunal referred to section 124 of the EqA. The claimant seeks declarations; compensation; and a recommendation.[172]The Tribunal upheld the complaints of discrimination under sections 15 and 20 of the EqA. The Tribunal considered that it was appropriate in its judgment to make declarations to that effect.[173]The Tribunal then considered whether it was appropriate to make a recommendation. The claimant did not seek one. The Tribunal felt that it was inappropriate to do so.[174]The Tribunal then considered compensation. The Tribunal referred to the claimant’s schedule of loss. While the claimant relied on this document he was not taken to the document during his evidence. The Tribunal noted that there was reference in the schedule of loss to a four percent employer contribution to pension. This was not referred to in any of the payslips. There was no evidence to explain this figure which appeared to contradict a figure of three percent contribution in a document that was included in the productions to which the Tribunal had not been referred. The Tribunal therefore considered only the basic salary.[175]The respondent accepted that the claimant had mitigated his loss from the date of termination up to the period when he found new employment in the middle of March 2020. Mr Cunningham argued that the respondent did not cause the claimant’s unfitness to work. He was fit and able to work some 10 weeks after termination of his employment There was no medical evidence expressly showing that any of the respondent’s actions caused or contributed to the mental health issues that resulted in the claimant being unfit to work from mid-March 2020.[176]Ms Stein referred the Tribunal to the medical notes that were provided for the preliminary hearing in March 2021 which had an entry on 12 March 2020 to the claimant being very distressed because he was “suspended and removed from his job and won’t ever be able to work again”. There was also reference to the letter from Ms MacDonald dated 2 December 2020 about the claimant’s concerns about believing he would be sacked and that would feed into the beliefs about him being a failure. In relation to the claimant’s loss of earnings up to the date of the final hearing the Tribunal was surprised that an up-to-date medical report was not produced addressing the extent, if any the respondent’s actions caused or contributed to the claimant’s mental health issues from mid-March 2020.[177]The Tribunal agreed with Mr Cunningham’s submission that the thrust of the claimant’s disability claims arise from ADHD. The medical records that were produced underlined the long-standing and complex nature of the claimant’s mental health conditions which pre-dated the claimant’s employment with the respondent.[178]While he was not subjected to disciplinary proceedings the Tribunal could understand that being dismissed would have impacted on the claimant’s mental health. The Tribunal did not doubt that the claimant wanted to work. He was well qualified. There were no issues about his abilities as a mechanic. The claimant was able to secure new employment in midMarch 2020. The Tribunal felt that the circumstances surrounding the new employment in March 2020 and his reasons for leaving were vague. The Tribunal noted that the medical referral in March 2020 refers to the claimant stating that he was distressed because he was “suspended and removed from his job and won’t ever be able to work again”. It was not clear to the Tribunal why at that point the claimant formed that view. As previously explained the Tribunal was unclear about whether the new employment started before or after the medical referral on 12 March 2020.[179]The respondent’s discriminatory treatment of the claimant caused him to be off work. The respondent would have known that the claimant would have been upset by the decision to terminate his employment but the Tribunal did not consider that it was reasonably foreseeable that the claimant’s mental health would have deteriorated to the extent that it did. While the Tribunal felt this was regrettable it decided that it was appropriate based on the limited medical evidence available to restrict the claimant’s financial loss to 16 March 2020.[180]The claimant received £550 net per week. The Tribunal calculated the period between the date of termination and when the claimant found new employment as 13 weeks, that is £7,150 from which the Tribunal deducted one week’s pay in lieu of notice which the Tribunal understood that the claimant had received leaving a balance of £6,600. What injury of feelings has any discrimination caused?[181]Turning to an award for injury to feelings this is compensatory. It should be just to both parties. It should compensate fully without punishing the wrongdoer. Feelings of indignation at the wrongdoer’s conduct should not be allowed to inflate the award.[182]The Tribunal reminded itself that an award of injury to feelings is to compensate for “subjective feelings of upset, frustration, worry, anxiety, mental distress, fear, grief, anguish, humiliation, stress, depression.” (see Vento v Chief Constable of West Yorkshire Police (No. 2) [2002] EWCA Civ 1871[2003] IRLR 102).[183]In Vento, the Court of Appeal observed there to be three broad bands of compensation for injury to feelings (as distinct from compensation for psychiatric or similar personal injury). The top band should be awarded in the most serious cases such as where there has been a lengthy campaign of discriminatory harassment on the ground of sex or race. Only in the most exceptional case should an award of compensation for injury to feelings exceed the normal range of awards appropriate in the top band. The middle band should be used for serious cases which do not merit an award in the highest band. The lowest band is appropriate for less serious cases such as where the act of discrimination is an isolated or one-off occurrence.[184]For claims presented after 6 April 2020, the Vento bands are now a lower band of £900 to £9,000 (less serious cases); a middle band of £9,000 to £27,000 (cases that do not merit an award in the upper band); and an upper band of £27,000 to £45,000 (the most serious cases), with the most exceptional cases capable of exceeding £45,000.[185]The claimant sought an injury to feeling award at the top end of the lower band of Vento of £8,000. The respondent said that this is more likely at the lower end of the band.[186]In the Tribunal’s judgment this is a case that appropriately falls into the top quartile of the lower band of the Vento guidelines. There were different types of discrimination and it was not a one-off act. The subjective feelings described by the claimant in his evidence at the final hearing were entirely plausible and credible. The claimant enjoyed working. It gave him a sense of purpose. He lost confidence when his employment terminated. While he had a pre-existing conditions, Mrs Ferguson had not experienced the claimant’s being like he was when he lost employment. The respondent paid lip service to any enquiries about the claimant’s change in behaviour in September 2019. Even with the benefit of hindsight the respondent’s witnesses showed no empathy towards the claimant or insight as to what they might have done differently. The respondent had not embarked on a lengthy campaign of discriminatory treatment, but the respondent’s failings were not insignificant.[187]The Tribunal found the claimant’s account of the impact of the respondent terminating his contract of employment credible and reliable. The subjective feelings described by the claimant in his evidence at the final hearing were plausible and credible that he would feel hurt feelings when felt that he had given his heart and soul to the job; had met with Mrs Hepburn to suggest ways of improving conditions for everyone and getting the best out of him only to be told that he was not wanted going forward.[188]Applying a broad brush, the Tribunal assessed the amount payable to the claimant for injury to feelings as £8,000 and that is the amount the Tribunal ordered the respondent to pay to the claimant.[189]The Tribunal turned to the question of interest. It is empowered to make an award of interest upon any sums awarded pursuant to the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996. The rate of interest prescribed by regulation 3(2) is the rate fixed for the time being, currently an amount of eight per cent per annum in Scotland.[190]Under regulation 6(1)(a) for an award of injury to feelings the period of the award of interest starts on the date of the act of discrimination complained of and ending on the day on which the Tribunal calculates the amount of interest. In the case of other sums of damages or compensation and arrears of remuneration, interest shall be for the period beginning on the mid-point date and ending on the calculation. The mid-point date is the date halfway through the period beginning on the date of the act of unlawful of discrimination and ending on the date of calculation. For the purposes of both awards the date of calculation is 25 February 2022 being the date of this Judgment.[191]Where the Tribunal considers that a serious injustice would be caused, if interest were to be awarded for the periods in regulation 6(1) and (2), it may, under regulation 6(3), calculate interest for a different period, as it considers appropriate. The Tribunal received no submission to that effect from either party, and it did not consider it appropriate to do so. The Tribunal cannot alter the interest rate of eight per cent per annum, as that is prescribed by law, and it is a matter in respect of which it has no judicial discretion to vary the interest rate, only the period to which that rate refers. Accordingly, the appropriate rate of interest is eight per cent.[192]The Tribunal considered the relevant dates for the purposes of calculating interest. The Tribunal asked when the first act of discrimination started. While the claimant was dismissed on 18 December 2019 the Tribunal considered that in relation to the claim of failure to make reasonable adjustments that respondent ought to have known that the PCP was placing the claimant was at a substantial disadvantage from 18 October 2019 when he resigned. The period end on the date of calculation which is the date of this judgment (25 February 2022).[193]The Tribunal orders the respondent to pay the clamant the additional sum of £622.03 representing interest on the claimant’s total loss of earnings of £6,600, calculated by reference to the mid-point between 18 October 2019 and 25 February 2022 a period of 860 days. The mid-point is 430 days. The Tribunal’s calculation is £6,600 x 0.08 x 430/365 days = £622.03.[194]Further the Tribunal orders that the respondent shall pay to the claimant the additional sum of interest upon the injury to feelings award of £8,000 calculated at the appropriate rate of interest of eight percent for the period between 18 October 2019 and 25 February 2022 being the date of this judgment, a period of 860 days. The Tribunal’s calculation to is £8,000 x 0.08 x 860/365 days = £1,507.94.[195]Adding the two interest amounts together the total interest payable is £2,129.97.